jkti=] fgekpy izns'k

fgekpy izns'k jkT; 'kklu }kjk izdkf'kr

f”keyk] cq/kokj] 21 ebZ] 2014@31 oS'kk[k] 1936

fgekpy izns'k ljdkj

fgekpy izns”k Ckkjgoha fo/kku lHkk

vf/klwpuk

f”keyk&171004] 20 ebZ] 2014

la[;k% fo0l0%&fo/kk;u&”kiFk@1&2@2013-&&Hkkjrh; lafo/kku ds vuqPNsn 188 ds vuqlj.k esa

fgekpy izns”k fo/kku lHkk ds fy, 37&lqtkuiqj fuokZpu {ks= ls mi&pquko esa fuokZfpr lnL;]

Jh ujsUnz Bkdqj us jkT;iky egksn;k }kjk bl iz;kstu gsrq tkjh vkns”k la[;k fo0l0&fo/kk;u&vkns”k@

1&50@83&1] fnukad 19 ebZ] 2014 }kjk fu;qDr] v/;{k] fgekpy izns”k fo/kku lHkk ds le{k fnukad

20 ebZ] 2014 dks ¼iwokZg+u½ “kiFk xzg.k dhA

¼lqUnj flag oekZ½

lfpo]

fg0 iz0 fo/kku lHkkA

35&jkti=@2014&21&5&2014 ¼649½

650

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

HIGHER EDUCATION DEPARTMENT

NOTIFICATION

Shimla-2, the 19^th May, 2014

No. EDN-A-Ka(3)-12/2009-L.—The Governor, Himachal Pradesh, in exercise of the

powers conferred upon her under section 4(2) of the Himachal Pradesh Private Educational

Institutions(Regulatory Commission) Act, 2010 (Act No. 15 of 2011) and on the recommendations

of a Search Committee, is pleased to appoint Er. Sunil Dutt Sharma, r/o House No.129, Ward No.6,

Gandhi Nagar, Hamirpur, Himachal Pradesh, as Member, Himachal Pradesh Private Educational

Institutions Regulatory Commission for a period of three years from the date of his joining as such

or until he attains the age of 65 years, whichever is earlier.

By order,

Ali R. Rizvi,

Pr. Secretary(Education).

__________

No. EDN-A-Ka (5)-2/2013- ICFAI.

Government of Himachal Pradesh,

Department of Higher Education.

From

The Pr. Secretary (Education) to the

Government of Himachal Pradesh.

The Chief Administrative Officer,

Institute of Chartered Financial Analysts of India

(ICFAI) University, HIMUDA Education Hub, Kalujhanda,

Barotiwala, Baddi, Distritct Solan- 174 103.

Shimla-171002, the 30^th April, 2014.

Subject:

Notice.

Sir,

I am directed to refer to your letter no. IU-HP/Policy (Part-II) dated 17th April, 2014 on the

subject cited above and to inform you that the Government has decided that Institute of Chartered

Financial Analysts of India (ICFAI) University will ensure to comply with the following preventing

measures at the earliest;

(i)

that the Vice Chancellor and Registrar are appointed by 31st May, 2014;

(ii) that no financial liabilities of the Society is transferred to the University; and

651

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

(iii) that efforts are made by the University to ensure that there is a sizeable increase in

number of students admitted.

In view of the above you are requested to take immediate steps to comply with above

directions of the Government and send action taken report to this department at the earliest.

Yours faithfully,

Sd/-

Under Secretary(Education).

_________

HIMACHAL PRADESH JUDICIAL ACADEMY

Curzon House, Boileauganj, Shimla – 171005

CHARGE RELINQUISH REPORT

Dated: 19^th May, 2014

No. HPJA/Prsnl/2013- 2445-2486.—Pursuant to Hon’ble High Court of Himachal Pradesh

Notification No. HHC/GAZ/14-53/74-V dated 17-05-2014, I, Yashwant Singh Chogal, do hereby

relinquish the charge of the post of Director, H.P. Judicial Academy today the 19th day of May,

2014 (afternoon).

Sd/-

(YASHWANT SINGH CHOGAL),

Joint Director,

H.P. Judicial Academy, Shimla-5

_________

HIMACHAL PRADESH JUDICIAL ACADEMY

Curzon House, Boileauganj, Shimla – 171005

CHARGE ASSUMPTION REPORT

Dated: 19^th May, 2014

No. HPJA/Prsnl/2013- 2550-90.—Pursuant to Hon’ble High Court of Himachal Pradesh

Notification No. HHC/GAZ/14-53/74-V dated 17-05-2014, I, Rakesh Kainthla, do hereby

relinquish the charge of the post of Director, H.P. Judicial Academy today the 19th day of May,

2014 (afternoon).

Sd/-

(RAKESH KAINTHLA),

Director,

H.P. Judicial Academy, Shimla-5.

_________

652

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

HIMACHAL PRADESH JUDICIAL ACADEMY

Curzon House, Boileauganj, Shimla – 171005

CHARGE RELINQUISH REPORT

Dated: 19^th May, 2014

No. HPJA/Prsnl/2013- 2488-2529.—Pursuant to Hon’ble High Court of Himachal Pradesh

Notification No. HHC/GAZ/14-53/74-V dated 17-05-2014, I, C.B. Barowalia, do hereby relinquish

the charge of the post of Director, H.P. Judicial Academy today the 19th day of May, 2014

(afternoon).

Sd/-

(C. B. BAROWALIA),

Director,

H.P. Judicial Academy, Shimla-5.

________

THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

EOI No: 1/2014

Dated: 20.05.2014

INVITATION FOR EXPRESSION OF INTEREST FOR

SCANNING/DIGITIZATION OF COURT RECORD

The

High

Court

Himachal

Pradesh

invites

Expression

Interest

for

Scanning/Digitization of approximately 1.5 crore pages of judicial record. The scope of work

broadly is as below:

• Scanning, Indexing. Storing, Archiving & Retrieval of court record in digital form

in secure manner.

•

• Application Software & Methodology to be adopted for seamless integration with

existing workflow based on Case Management Information System (CMIS)

Software developed using My SQL/Linux/Apache/PHP (LAMP technologies).

•

• Imparting of training to High Court Staff on Scanning, Indexing, Storing,

Archiving, Retrieval and Printing process.

Only interested companies/firms having relevant experience in this area will be eligible for

short listing.

The details are available in the document entitled as Invitation for Expression of interest for

scanning /digitization of Court record, posted on official website of this High Court

http://hphighcourt.gov.in and also may be obtained from this Court during office hours between

9:45 am to 4:45 p.m. on any working day. The person(s) concerned who satisfies the eligibility

criteria may submit the application(s) either personally or through post/courier along with profile

653

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

and past experience to the Registrar General, High Court of Himachal Pradesh so as to reach on

or before 18.06.2014 at 4.45 PM.

Registrar General

High Court of Himachal Pradesh

Shimla

_________

THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

EOI No: 1 / 2014

Dated: 20.05.2014

INVITATION FOR EXPRESSION OF INTEREST FOR

SCANNING/DIGITIZATION OF COURT RECORD

1. Sealed Expression of Interests (EOIs) are invited for Scanning / Digitizing of about 40 years

Old Record of High Court of H.P. i.e. approximately 1.5 crore pages on actual work basis and/or to

scan and digitize record of current and pending Case files including solution of cases to be filed

fresh.

2. The person should be able to scan and digitize the entire record in about 2 years with

minimum commitment of pages each day, as may be mutually agreed in the space to be made

available to such concern for the purpose of scanning/digitization.

3. The person is to create Scanning/Digitizing, Indexing, Storing and Retrieval facility set up.

4. The person must have adequate experience of having Scanning/digitizing, indexing, storing

and providing retrieval facility for documents and must provide proof for this.

5. The person must attach documents as proof to show that similar or related projects having

been completed successfully and Balance Sheets of the past three year period with special reference

to turn over, if any, from scanning and/or digitization of records.

6. A demonstration of the proposed solution shall have to be given to the Hon'ble Steering

Committee (eCourts) of the High Court and a Committee of other experts, if formed. Based on the

demonstration of the solutions and discussions, it shall be decided whether commercial offers be

called from the person whose solution is found suitable or fresh tenders are to be called after

finalization of the tender documents.

7. The person may suggest any addition/alternation to the scope of the work and/or terms &

conditions depending upon their experiences.

8. The interested persons can inspect the records lying in the Record Room(s) after contacting

Deputy Registrar (Digitization) on Telephone No. 0177-2888211 during working hours of the

Court.

The Registrar General shall reserve the right to reject any “expression of interest” without

assigning any reason.

10.

The “expression of interest” received after due date and time i.e. 18.06.2014 at 4:45

p.m., shall not be entertained.

654

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

TENTATIVE SCOPE OF SCANNING WORK

Batch Processing, Archiving (Scanning and storing intoimage/digital form) and Retrieval.

The papers to be scanned will be mostly of Legal Size and written on one side. It can be of

other sizes and printed/typed or handwritten on both sides as well. The condition of some of

the case record may not be very good being old. The person shall come up with technical

solution for scanning/digitization of brittle record as well.

The process may include:

(i) Receiving files by the person from High Court staff.

(ii) Preparing the files for scanning/digitization purpose, i.e., removal of tags, pins, etc.

(iii) The person shall also include, in the proposal, to shred the case record using Shredding

Machines as some part of the record may be required to be discarded/destroyed before

or after the scanning / digitization.

(iv) Scanning and Storing the Data in Scanned form with mirroring facility and one

additional back up on hard disk drive.

(v) Indexing the stored scanned data. Following are the proposed Indexing Parameters:

• Case Type, Number, Year

• Petitioner Name(s)

• Respondent Name(s)

• Advocate Name(s)

• District Name

• Latest Case Status

• List Type

• Category

• Bench Type

• General Remarks

• Type of Document

• Date of Document

• Keywords

• Sections

• Date of Storage

• User, who entered it

(vi) Handing over the files back to the High Court staff in their original condition and or

after discarding/destroying specified record.

(vii) Handing over the scanned data on appropriate electronic media to High Court.

(viii) Providing licensed updated Application Software to High Court.

(ix) Transferring the stored scanned data on the hard disk or High Court's Servers for future

retrieval.

655

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

(x) Imparting of adequate training to the staff of this Court for (1) archival (scanning and

storing) (2) Indexing (3) retrieval and printing.

(xi) Full maintenance and support for one year after the completion of the work.

If the person is already doing the Scanning/digitizing work on 'job work basis’ in any

Government department or any reputed private firm, then the name, address and telephone

number of the same may be mentioned.

The High Court, in its discretion, reserves the right to reject or accept any or all the tenders

partly or completely at any time without assigning any reason therefor.

Presently the High Court is using My SQL RDBMS (Relational Database Management

Systems) and the software to be developed by the person is to ensure seamless integration

with the existing workflow based system in use by the High Court.

The work at the discretion of the High Court, may be awarded to one or more persons, as

the case may be.

The person will execute an appropriate agreement, on the agreed terms & conditions with

the High Court and also furnish performance guarantee equivalent to 5% of contract value

to be valid for one year after the successful completion of the project.

The person should submit the Proposed Technical Details as per Annexure 'I' attached

herewith as far as possible. In case, the person is found not suitable in Technical Details, its

financial bid need not be called.

The High Court will deal with the person directly and no middlemen / agents / commission

agents etc. should be asked by the person to represent their cause.

TENTATIVE TERMS & CONDITIONS

The person furnishing the Technical interest shall have to compile and make an instruction

manual for Scanning/digitizing, storing and retrieving operations and the same shall be provided to

the High Court for use of its staff or carrying out the operation of Scanning/digitizing and retrieval.

The person shall have to arrange its own staff for the entire scope of work. The High Court

would neither bear any expenses nor accept responsibility for the same and there would be no

relationship of employer and employee between the High Court and the staff of the person.

Likewise, the High Court shall not be a principal employer of the employees employed by such

person for the purpose of Employees’ Compensation Act.

The person should have its own sufficient infrastructure and qualified professionals at

Shimla.

The High Court reserves the right to deny entry into its premises to any staff member of the

person, if so deemed appropriate by it.

The person will ensure that the staff engaged is disciplined and maintains full decorum of

the Court.

The Hardware for the project will be provided by the High Court, as detailed in Annexure

‘II’. The person is to suggest any other mandatory hardware or ICT infrastructure required for

656

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

execution of the project. Once the hardware is installed, the firm will not take any storage device

away, without permission of the High Court.

The successful person shall undertake the job of Scanning/digitizing only in the High Court

premises.

Continuance of the contract shall be subject to satisfactory performance of the person and it

may be cancelled at any time without assigning any reason for the same. The decision of the

Registrar General, High Court of Himachal Pradesh, Shimla in this regard shall be final and

binding.

The person may be allowed to do the scanning/digitization work on all working days. The

timings and work schedule will be decided, mutually between the person and High Court but in all

probability it must coincide with office timing of the High Court i.e. 9:45 a.m. to 4:45 p.m.

10)

The High Court will provide the files to the authorized representative of the person

supervising the Scanning/digitizing work, on day to day basis under proper receipt and it will be the

responsibility of the person to accomplish the task of scanning/digitization after following all the

processes, namely Unbundling, Rebundling, Super Indexing, Scanning/digitizing, Splitting &

Merger, Page numbering, Storing, Retrieval, etc.

11)

It will be the responsibility of the person to return the files to High Court staff under

acknowledgment in the same shape and condition it was taken.

12)

The person will ensure that the documents/files handed over to it are kept in proper

condition and no document is soiled/lost/misplaced/damaged.

13)

In case the person finds any original document which is in a very bad condition, it will

make its best efforts to take out better print (either by typing on a separate sheet of paper or taking

out a better photocopy thereof) and then put the said data in the relevant database. The original

papers shall however be retained in the main file.

14)

The person, after successfully storing the data on its own computer shall transfer the same

on the computer to be provided by the High Court along with the documentation, technical and user

manual. However, the person shall be fully responsible for the proper archiving, storing and

retrieval of the Scanned/digitized data for a minimum period of one year after completion of its

work on its hardware. The High Court may seek suggestion of the person about the configuration

and the number of computers and other hardware for Archival and Retrieval of digitized data,

including back up.

15)

Complete secrecy and confidentiality is required to be maintained by the person and its

employees.

16)

The person shall not be allowed to take away any file/record etc. either in the shape of hard

copy or soft copy and the work is to be carried out in the High Court premises itself.

17)

The person has to develop and supply two copies each of the software products along with

the source code. The person has to develop the software specific to High Court needs, with water

marking and digital signature facilities. Such application software will be well integrated with

CMIS software, already implemented and in use in this court.

18)

The person using the integrated software for Scanning/Digitization and Document

Management System shall provide its license to the High Court.

657

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

19)

The software module should have multiple accesses with security features, with facility for

updation of information.

20)

The High Court of Himachal Pradesh through the Registrar General will have copyright on

the product, format, concept layout and design. The High Court will have exclusive rights to use it

anywhere, in any manner.

21)

It shall be the duty of the person to have the licensed software updated from time to time

and provide all possible assistance/help during the scanning/digitization work.

22)

Time is the essence of the contract and the person shall adhere to the time schedule,

contracted page work and deadline as prescribed by the High Court for execution of the work.

23)

On the completion of the work, the person shall hand over the latest licensed updated

software and also the database to this Court, which shall become the property of High Court of

Himachal Pradesh for all intents and purposes.

24)

Licensed copy of the application software and database design as may be developed by the

person or its employees for and during execution of the work shall vest in High Court of Himachal

Pradesh and the person shall execute necessary documents for the same and also get an assignment

from its employees, in favour of High Court.

25)

The data is to be stored by way of images in Searchable Portable Document Format with

adequate resolutions to ensure the readability and ease in retrieval. The images so stored in the

database should be properly indexed as per the requirements of High Court and should be capable

of adding more images, at later stage if need be, in an old stored file. The data so stored shall be in

a non-editable form.

26)

The database created by the firm shall be retrievable in Portable Document Format by the

user. Necessary training for the retrieval of the database for the Scanning/digitizing, storing,

organizing and retrieval are to be imparted to the staff of this Court.

27)

The High Court of Himachal Pradesh, in consultation with the person, will finally decide

the retrieval parameters.

28)

All Scanned/digitized files will be stamped and duly signed by the user indicating that the

"FILE IS SCANNED/DIGITISED AND DULY RECONSTRUCTED" and the person will be

fully responsible for any loss/damage of any document.

29)

At the end of every quarter the firm will hand over complete Scanned/digitized data to the

High Court.

30)

If it is found at any time that the Scanning/digitizing, Indexing, storing or retrieval has not

been done in accordance with the agreed terms and conditions, the High Court shall be entitled to

withhold further payment of the firm and also to recover the payment already made.

31)

The staff of the High Court will do random checking of the work being done by the person

and in the event of the person not executing or completing the minimum agreed volume of work,

the High Court may impose suitable penalty per unfinished page in addition to the recovery of other

losses and damages that may suffer, besides terminating the contract and getting the work executed

at the cost and responsibility of the person.

32)

The High Court shall provide space for work, electrical supply, table, chairs, shredders and

file racks etc. as per requirement but the person will ensure that the space and other facilities

provided to it by the High Court are not misused in any manner.

658

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

33)

Payment for scanning/digitization work done under the contract shall be made on quarterly

basis, subject to statutory, other deductions and penalties and damages, if any, levied and

recoverable under the contract for the work done as per agreed terms to the satisfaction of High

Court. The person will be responsible for liabilities of all kind including local and other taxes.

34)

The digitization software should be web enabled.

35)

The Scanned/digitized record will be the property of the High Court of Himachal Pradesh.

The person shall have no right, title or interest in it and shall not use it in any manner.

36)

In the event of termination of Contract, High Court shall be entitled to forthwith forfeit the

amount of performance guarantee either full or in part apart from taking such legal remedies as are

available in law. The person shall thereupon hand over the Judicial and other records, which are in

its possession. The person shall not be entitled to remove the digitized data, which will be the

property of High Court of Himachal Pradesh.

Interested persons may send their details in sealed covers subscribing on the top of outer

cover as “TECHNICAL INTEREST” addressed to the Registrar General, High Court of

Himachal Pradesh so as to reach on or before 18.06.2014 at 4.45 PM. The Technical Interest will

be opened in the Office of Registrar General, High Court of Himachal Pradesh, Shimla in the

presence of person(s) or their representatives, who wish to remain present, at 11.00 AM. on

20.06.2014.

Registrar General

High Court of Himachal Pradesh

Shimla.

_______

ANNEXURE-I

(i)

Description/Name of the vender (including legal status, ownership etc.) (ii) The person’s

understanding of the project requirements and the proposed total solutions.

(iii)

Methodology to be used for Scanning/digitizing. Separate Methodology may be specified

for scanning/digitization of old record and fresh-filed cases.

(iv)

What would be the output/day in terms of number of pages that can be Scanned/digitized,

indexed, stored and retrieved?

(v)

Maintenance and technical support services to be provided after supply of the software.

(vi)

Number of technical persons to be deputed by the person for the work (with details of their

educational qualifications, experience, functions, etc.)

(vii) Number of non-technical persons to be deputed by the person (with details of their

educational qualifications, experience, functions, etc.)

(viii) Other Hardware equipment the person propose to provide.

(ix)

What is the Software the person propose to use for scanning/digitizing, indexing, storing

and retrieval?

(x)

How much space the person may require to execute the work?

659

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

(xi)

How long the person estimate to complete the work in all respects?

(xii) What facilities the person expect from the High Court in executing the work?

(xiii) List the clientele of the person with amount of work completed, their addresses and contact

person's details.

(xiv) Main features of proposed solution and any area of risk.

(xv)

Details of LAN to be established by the person.

(xvi) Steps to prevent accidental or intentional destruction of software and data.

(xvii) Any other relevant information which the person considers necessary for such type of

projects.

__________

ANNEXURE-II

Item

Head

Code

Item Name

Quantity

Configuration

Desktop PCs

Intel i-5 Processor with 4GB RAM

and 500 GB HDD

Scanners

KODAK i1420

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 3^rd May, 2014

No. Sharm (A) 7-1/2005-IV (Award).—In exercise of the powers vested under section

17(1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order

the publication of awards of the following cases announced by the Presiding Officer, Labour

Court Shimla on the website of the Department of Labour & Employment, Government of

Himachal Pradesh.

Sr.

No.

Case No.

Title of the Case

Date of Award

101/2009

S/Shri Pushpa Devi V/s M.D. M/s Hemma

herbs Pvt. Ltd, 39 Industrial Area Barotiwala

Distt. Solan.

17-01-2014

117/2010

Prem Singh V/s DFO Shimla.

03-03-2014

97/2009

President General Secretary V/S M/s Gabrial.

03-03-2014

43/2013

Surinder Singh V/S Sh Bali Ram & Others.

15-03-2014

39/2013

Kuldeep Kumar V/s -do-

15-03-2014

110/2009

Rajit Kumar V/s M.D.Cosmo Frerriters Ltd.

Jabli.

13-03-2014

74/2010

Shyam V/s Mount Everest Mineral Water Ltd.

21-03-2014

138/2004

Dola Ram V/s HP Khadi.

31-03-2014

660

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

112/2009

Deep Ram V/s HPPWD Kumarsain

01-04-2014

10.

114/2014

Tunnu Lal Yadav V/s Sidhartha Super Spining

Mills Nalagarh.

10-04-2014

R. D. DHIMAN,

Pr.Secretary ( Labour & Employment)

__________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT SHIMLA

Ref No. 138 of 2004.

Instituted On: 6.12.2004.

Decided On: 31.3.2014

Dola Ram S./o Shri Lekh Ram, Village Nadohat, P.O Hinri, Tehsil Sunni, District Shimla,

. . Petitioner.

Versus

HP Khadi and Village Industries Board, Cleave Land, Shimla through its Chief Executive

Officer

. . Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri Satyen Vaidya, Advocate.

For respondent: Shri Susheel Parihar, Advocate.

AWARD

The reference for adjudication is as under:

“Whether the removal of services of Shir Dola Ram S/o late Shri N.R Sharma by the

Chief Executive Officer, HP Khadi & Village Industries Board Cleave Land, Shimla

171004 w.e.f. December, 1999 without complying the provisions of the Industrial

Disputes Act, 1947 is proper and justified? If not, what relief of service benefits Shri

Dola Ram workman is entitled to?”

2. The case of the petitioner is that, initially, from October, 1993 to December, 1993, he

worked as daily waged clerk/helper in the establishment of the respondent. Thereafter, he continued

to work there from September, 1994 to November, 1996. Since, he had remained under mental

depression from October, 1996 to March, 1998 and also underwent treatment from psychiatry

department of Indira Gandhi Medical College, Shimla, for this reason, he could not work during the

said period. The fact regarding his being indisposed, due to mental depression, was within the

knowledge of the respondent. W.e.f 20.4.1998, he was again allowed to work, as daily wager,

initially till 19.6.1998 and thereafter till 31.12.1999. However, for the period 20.6.1998 to

2.10.1998 and 1.10.1999 to 31.10.1999, he was not paid any salary/wages on the pretext that

sanction in this regard had not been accorded by the appropriate authority of respondent. Since,

during the said period, he had worked, he was entitled to be paid full permissible wages. It is

further alleged that during the period w.e.f. 20.4.1998 to 31.12.1999, he had been discharging the

duties of salesman and clerk as per the satisfaction of the respondent. He had also completed 240

days. It is further averred that w.e.f. 1.1.2000, he was not allowed to work by the respondent

661

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

without any justifiable cause. In this way, his retrenchment by the respondent was against the

mandatory provisions of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred as

Act). He was also not issued any notice prior to his retrenchment. No wages were even paid to him

in lieu of the statutory notice. The respondent had neither paid him retrenchment compensation nor

served the appropriate government with prescribed notice prior to his retrenchment. It is further

averred that he was also entitled for regularization of services except for the period of his illness.

After his retrenchment, the respondent has given employment to other persons without considering

his lawful claim. Against this back-drop a prayer has been made for declaring his retrenchment

w.e.f. 1.1.2000, to be illegal and also to re-employ/re-engage him along-with back wages and other

consequential reliefs.

3. The petition has been contested on having raised various preliminary objections

including estoppel and that the petitioner has suppressed material facts from this Court. On merits,

it has been stated that the petitioner had been engaged as salesman, on daily wages basis, in

October, 1993 and worked upto Jan., 1994. Thereafter, he was again engaged as helper in

September, 1994 and worked till November, 1996, as per the requirement of the respondent. It has

been specifically denied that he had remained under mental depression from December, 1996 to

March, 1998. The respondent had also not been informed by the petitioner regarding his alleged

illness. In April, 1998, he had been engaged as daily paid clerk and worked upto June, 1998.

Thereafter, he was engaged in October, 1998 and worked till Feb., 1999. It has been denied that the

petitioner is entitled for payment of salary w.e.f. 20.6.1998 to 2.10.1998 and 1.10.1999 to

31.10.1999. It has been clarified that during the aforesaid periods, he had never been engaged by

the respondent. It is further asserted that the petitioner had been engaged, not on regular basis but

as per the need of the respondent. It is further maintained that in the years, 1995 and 1996, the

petitioner had completed 240 days but thereafter, without information, he did not report for work,

for more than 1 ½ years. It has also been denied that his services had been retrenched in violation

of section 25-F of the Act. On the contrary, the petitioner, himself had failed to report for duties

without informing the respondent. As far as respondent is concerned, it had been engaging daily

wagers on need basis as per its requirement and not on regular basis. Apart from this, Finance

Department of Government of Himachal Pradesh had issued instructions wherein it was stressed

that engagement of daily waged personnel without concurrence of Finance Department was in

contravention of Government orders. It is further maintained that the respondent has not made any

engagement after the issuance of Government instruction. Pursuance to the policy of reforming the

public sector undertaking, the respondent had submitted its restructuring plan to the Government

for acceptance. As per this restructuring plan, about 38 employees of different categories had been

declared surplus and the respondent had proposed to adjust them in different departments. Other

allegations denied.

4. By filing rejoinder, the petitioner reaffirmed his own allegations by denying those of

the respondent.

5. Pleadings of the parties gave rise to the followings issues which were struck of by this

Court on 10.1.2006.

1. Whether the services of petitioner have been illegally terminated by the

respondent in violation of the provisions of I.D Act, 1947?? If so its effect?

.. OPP.

2. If issue No-1 is proved in affirmative to what relief of service benefits the

petitioner is entitled to?

..OPP.

3. Whether the petition in the present form is not maintainable?

..OPR.

662

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

4. Whether the petitioner is estopped to file the present petition due to his own act,

conduct and acquiescence?

..OPR.

5. Relief.

6. Before, I proceed further, it is pertinent to mention that vide award dated 26.8.2008,

the petition of the petition had been allowed and he was ordered to be reengaged in service with

seniority and continuity but without any back wages. The award, so passed by this Court, was

challenged before Hon’ble High Court in CPW No. 2681 of 2008. As per order, passed by Hon’ble

High Court, the case was remanded to this Court for determination afresh as to whether the period

of absence of the petitioner was, in fact, necessitated by mental illness. Paragraphs No. 4 & 5 of the

order of Hon’ble High Court, are relevant and are reproduced, as under:

“4. In writ proceedings challenging an award under the Industrial Disputes Act, a

meticulous re-appreciation of facts cannot be resorted to. But at the same time, what I

find from the award is that it becomes conjectural when it deals with the submission

made on behalf of respondent No.2 herein that he remained absent from duty because

of mental illness. This fact could have been very well proved from the treatment

record as evidenced by the medical record/prescription slips of the I.G.M.C. or any

other registered medical practitioner showing the petitioner’s inability to attend to his

job. Obviously if he was ill, it could not be said that he has abandoned his job and he

would be entitled to leave of the kind due.

5. In these circumstances, without entering into any other controversy, this case is

remanded to the Labour Court for determination afresh as to whether the period of

absence of the petitioner was, in fact, necessitated by mental illness. For this purpose,

the Tribunal will give both parties an opportunity of leading evidence. Needless to say

that hyper technical approach will not be adopted by the Tribunal for the reason that

the record does indicate that the petitioner was suffering from mental depression and

he remained under treatment in hospital. In these circumstances, this petition is

disposed of with the direction as above. Parties to appear before the Tribunal on 29^th

June, 2012. No order as to costs.”

7. When the case, after remand, was received in this Court, in view of the order of the

Hon’ble High Court and directions narrated therein, the petitioner was afforded opportunity to lead

his evidence and in consequence thereof, he examined himself on 16.3.2013, besides also

examining Shri Ravi Chand on the said date i.e 16.3.2013. The respondent also examined Smt.

Archna Sharma as its witness who was examined on 19.7.2013. It is further to be clarified that

consequent upon the allowing of an application which had been filed by the petitioner to lead

additional evidence and which was allowed by this Court, the petitioner examined Dr. Surender

Kumar on 17.12.2013 and also Shri Darshan Sharma on the said date. To rebut the additional

evidence, led by the petitioner, the respondent did not lead any evidence.

8. Besides having heard the learned counsel for parties, I have also gone through the

record of the case carefully.

9. For the reasons to be recorded hereinafter while discussing the issues for

determination, my findings on the aforesaid issues are as under:-

Issue No. 1

Yes.

Issue No. 2

Entitled for reinstatement with seniority and continuity in service but without

back wages.

663

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Issue No. 3 No.

Issue No. 4

No.

Relief.

Reference answered in favour of the petitioner and against respondent per

operative part of award.

Reasons for findings

Issue No. 1

10. The contention of the petitioner is to this effect that he had been engaged as clerk on

daily wages basis by the respondent in the month of October, 1993 and worked till December, 1993

and thereafter since, September, 1994 to November, 1996, he kept on working continuously. His

case is further to this effect that since from December, 1996 to March, 1998, he had suffered from

mental depression and underwent treatment, for this reason, he could not work. It has further been

maintained that again he was allowed to work as daily wager w.e.f. 20.4.1998, initially, till

19.6.1998 and thereafter till 31.12.1999. Thereafter, he was not allowed to work w.e.f. 1.1.2000.

This goes to show that as per the petitioner, his services had been illegally terminated in violation

of the provisions of the Act because regarding his mental illness, he had intimated the respondent

and his absence from duty was on account of his illness and not that he had voluntarily chosen to

abandon his job. On the other hand, the defence version is to this effect that the petitioner had not

informed regarding his alleged mental illness and that on his own, he had not joined his work.

11. When the petitioner appeared in the witness box, for the first time on 11.8.2008, as

PW-1, he supported the facts as stated in the claim petition, on all material particulars, including

that he had remained on medical leave from November, 1996 to March, 1998 as he had to remain

under medical treatment. He has clarified that he was suffering from mental disorder. On April,

1998, he had made an application to the respondent for sanction of his leave. Preceding his

termination, he had completed 240 working days in a calendar year. Consequent upon his

application to Senior Medial Superintendent, Indira Gandhi Medical College, Shimla, he was

issued fitness certificate copy of which is Ex. PA. At the time of his retrenchment, neither any

notice was issued nor he was paid compensation. His juniors are still working with the respondent

and they have been made regular. While proceeding on medical leave, he had informed the

respondent.

In the cross-examination he denied not to have completed 240 days in the years 1998 and

1999. He further denied to have deposed falsely in order to justify his leave period.

12. The petitioner had also examined Shri Jeet Ram Thakur (PW-2), whose statement was

recorded on 11.8.2008. According to this witness, the mandays chart of the petitioner is Ex. PB,

which is correct as per original brought by him. Neither any notice nor compensation was paid to

the petitioner when he left the job. In the crossexamination, he stated that the petitioner had been

engaged for specific period as per the requirement of the work. He (petitioner) had not informed the

respondent regarding his illness at any point of time. The respondent had not engaged any workman

after 1998, as per notification Ex. RA, which is correct as per original.

13. In support of its defence, the respondent had examined Shri Tara Chand (RW-1) on

23.8.2008. According to him, the petitioner had been enaged as helper in October, 1993 and he

continued to work as such till December, 1993. In Jan., 1994, he was reengaged and worked for 90

days. In September, 1994, he was again re-engaged and worked as such till Feb., 1995. In April,

1995, he was again reengaged and worked till November, 1996. Thereafter, he had abandoned the

job on his own. In April, 1998, he was again re-engaged and worked for 46 days against the

sanction of 60 days, granted by the Chairman of the respondent board. Again sanction, Ex. RA for

664

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

60 days, for the month of September and October, 1998, was received but he (petitioner) did not

work in September, 1998. Only for 28 days, he had worked in the month of October, 1998.

Sanction Ex. RB, was received for November and December, 1998 and the petitioner worked for 60

days during said months. Sanction Ex. RC, for 60 days was received for Jan., & Feb.,1998 but the

petitioner worked for 57 days in the said months. Sanction Ex. RD, for 60 days was received for the

months of June & July, 1999 but the petitioner worked for 17 + 31 days in 1999. Sanction Ex. RE

was received for September, & August, 1999 and during these months, the petitioner worked for 61

days. Thereafter, no sanction was received for 1999. In November, 1999, the petitioner was

engaged for 60 days and worked only for 28+24 days i.e 52 days in the said months. He had been

paid entire salary for the work done by him. The petitioner had been engaged for specific period

and for specific work. After, 1999, only the Finance Department of Government was competent to

engage the workers. No daily wager had been engaged by the respondent board, after 1999. The

petitioner had never informed the respondent board, about his illness, at any point of time. For the

first time, in March, 2000, he had represented his case for reengagement. The petitioner had not

completed 240 working days in 1999, preceding his abandonment of job. At present, the respondent

board is not having any requirement of the work, earlier being done by the petitioner. In the cross-

examination, he denied that the petitioner had sent letter dated 25.7.2001, which is mark A. He

admitted that there had been many daily waged clerks with the respondent who have been made

regular as per the policy of the Government. He denied that the petitioner had informed about his

absence on account of his disease. Neither notice nor compensation had been paid to the petitioner

after, 1999. NO enquiry had been conducted against the petitioner. He admitted that the surplus

staff of the board has been absorbed by other departments of the Government. He denied that the

petitioner had been terminated from service, intentionally. He admitted that Shri Ashok Kumar has

been working with the respondent board since, 1993 till date. He admitted that S/Shri Lekh Ram,

Bhupinder and Ramesh were made regular, recently, as per the policy of the Government.

14. Whereas, the evidence which has been led by the petitioner, before the remand of the

case, goes to show that on account of his mental illness, he had to remain under treatment from

November, 1996 to March, 1998 and further that before proceeding on medical leave, he had

informed the respondent, but from the evidence which has been led by the respondent, it has been

tried to show that the period during which, the petitioner had performed his job, he had been paid

wages and that regarding his illness, he had not informed the respondent board at any time. The

respondent has further led evidence that for the first time, the petitioner had represented his case in

March, 2002 and that preceding his abandonment of job, in the year, 1999, he had not completed

240 working days. From the evidence, which has come on record and also the facts as stated by the

respondent, in its reply, it is abundantly clear that the petitioner had performed the job as daily

wager till December, 1999, as per the periods mentioned therein. This goes to show that w.e.f.

1.1.2000, the petitioner had not worked for the respondent. Although, the plea, taken by the

petitioner, is to this effect that he had not been allowed to work w.e.f. 1.1.2000 but the defence

version is to this effect that, on his own, he had abandoned the job without informing the

respondent board regarding his alleged mental illness. Here, it is to be mentioned that the award

dated 26.8.2008, passed by this Court was challenged before Hon’ble High Court in CWP No. 2681

of 2008. The Hon’ble High Court, in its order dated 24.11.2011, took notice of this fact as to

whether the absence of the petitioner was on account of his mental illness. For this reason, the

Hon’ble High Court observed that the fact regarding the mental illness of the petitioner could have

been proved from the treatment record of Indira Gandhi Medical College, Shimla or any registered

medical practitioner. It was further observed by the Hon’ble High Court that if the petitioner was

found to be ill, it cannot be said that he had abandoned his job and in that event, he would be

entitled for leave of kind due. Thus, the Hon’ble high Court remanded the case to this Court for

determining afresh as to whether the period of absence of the petitioner was, in fact, necessitated by

mental illness.

665

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

15. Consequent upon the order of the Hon’ble High Court, the petitioner was allowed to

lead evidence and on 16.3.2013, he again examined himself as PW-1. In his evidence, he stated that

from 1997 to 1998 (Feb.), he remained ill and during that period, he was undergoing treatment

from Psychiatry department of Indira Gandhi Medical College, Shimla. After his illness, he again

joined his work on 16.3.1998. Consequent upon his application for getting issued certificate, he had

applied to Senior Medical Officer, Indira Gandhi Medical College, Shimla, vide Ex. PA. Upon his

such application, Dr. Ravi Chand, Professor and Head of department of Psychiatry, issued a fitness

certificate (Ex. PA). The cause of his absence was mental illness/disorder. In the cross-

examination, he stated that whenever, he used to go for medical treatment in the psychiatry

department, OPD slip was being prepared. Such medical slip has not been annexed by him with the

petition. He denied not to have remained mentally ill.

15. The petitioner has also examined Dr. Ravi Chand Sharma (PW-2), who appeared in the

witness box on 16.3.2013. According to him, since, 1987, he has been working in the department of

psychiatry at Indira Gandhi Medical College, Shimla and w.e.f. 2000, he has been its Head of

Department. He had issued fitness certificate Ex. PA, on having examined the record of the patient

(Dola Ram). In the cross-examination, he admitted that, generally, fitness certificate is issued on a

specific format. He further explained that if a patient applies for fitness certificate through Medical

Superintendent in that event the same is given on the application itself. He admitted that medical

fitness certificate, in the shape of Ex. PA, can be misused.

16. The petitioner has also examined PW-3, Dr. Surender Kumar, who appeared in the

witness box, on 17.12.2013. According to him, he had remained posted as Medical Officer

Himachal Hospital & Mental Health Shimla at Chakkar since, 2004. Prior to that, he was posted in

Zonal Hospital, Mandi. He also remained posted in Indira Gandhi Medical College, Shimla from

1998 to 2002. Medical Certificate Ex. PW-3/B, has been issued by him which bears his signatures.

He had examined the petitioner and on the basis of his history and record available with the

department, he had issued certificate Ex. PW-3/B. He further stated that a patient suffering from

mental disorder, understands the things but he may have different thinking. In the cross-

examination, he admitted that in Ex. PW-3/B, he has not mentioned the name of the disease from

which the petitioner was suffering.

17. The petitioner has also examined PW-4, Darshna Sharma, who appeared in the witness

box, on 17.12.2013. From the summoned record, she stated that serial no. 6/98 has been entered in

the name of petitioner (Dola Ram), the copy of which is Ex. PW-4/A. In the cross-examination, she

stated that in Ex. PW-4/A, there is no mention of address and parentage of the petitioner (Dola

Ram).

18. The respondent, after remand of the case, also examined Smt. Archna Sharma (RW-1),

who appeared in the witness box on 19.7.2013. She stated that regarding the issuance of medical

certificates, she has brought the entire record. The register, which has been brought by her, contains

entries from 5.3.2001 to 30.1.2002. Ex. RW-2/A, is the photocopy of original register. In the cross-

examination, she stated that in Ex. PA, entry encircled R-1, is in the hand of Dr. Ravi Chand

Sharma and entry to this effect is mentioned in Ex. RW-2/A encircled R-2. She admitted that as per

the original register, the fitness certificate has been issued in the name of Dola Ram Sharma.

19. By examining Dr. Surender Kumar (PW-3), who appeared on 17.12.2013, the

petitioner has proved before this Court that he had been undergoing medical treatment from

Psychiatry department of Indira Gandhi Medical College, Shimla, for mental disease/disorder,

since, Jan., 1997. The certificate, which has been issued in this regard, is Ex. PW-3/B. From this

certificate, it is borne out that when it was issued on 28.3.2000, by Dr. Surender Kumar, the

petitioner had remained under treatment for mental disorder from, Jan., 1997 till the date of

666

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

issuance of certificate. It is further proved from this certificate that the patient had been advised for

time to time checkups. Ex. PA, is the fitness certificate, which had been issued by Dr. Ravi Chand

(PW-2), who was examined on 16.3.2013. As per this certificate, the petitioner was found to be

mentally fit to do his duties on 4.4.2001. The medical evidence, which has been referred to above,

clearly goes to show that on account of his mental illness, the petitioner could not attend his work

and that whenever, he was declared mentally fit, he approached the respondent board for his

reengagement. Thus, it cannot be said that he had abandoned the job, as is the case of the

respondent.

20. Ex. PB is the mandays chart of the petitioner which goes to show that he had

completed 328 days in the year 1995 and 360 days in 1996 respectively. In the year, 1999, he had

put-in 218 days, on having been given fictional breaks in the months of March, April & May. From

this document Ex. PB, it is quite clear that the petitioner could not complete 240 working days in

the year, 1999, when his services were allegedly retrenched/terminated. Here, I would like to point-

out that continuing of 240 days is not necessary in the calendar year preceding the termination of a

workman but any of the calendar year, in which the petitioner completed 240 days, can be taken

into consideration. There lord ship of Hon’ble Supreme Court in case titled as Shriram Industrial

Enterprises Ltd. Vs. Mahak singh and others reported in (2007) 4 Supreme Court Cases 94 has

held that:-

“The exclusion of the word preceding from section 2(g) of he U.P Act indicates that a

workman in order to be in continuous service may have worked continuously for a

period of 240 days in any calendar year during his period of service.”

21. Considering the legal position, I may conclude that the working days put-in by the

petitioner in 1995-96 for more than 240 days can also be considered for the purpose of claiming

protection under section 25-F of the Act.

22. Another plea of the petitioner is that his juniors are still working with the respondent

board. When, regard is given to the evidence of Shri Tara Chand (RW-1), it is revealed that, in the

cross-examination, he states that Ashok Kumar has been working since 1993 till date and S/Shri

S/Shri Lekh Ram, Bhupinder and Ramesh were made regular as per policy of Government. From

his such evidence, the contention of the petitioner that his junior Ashok Kumar has been retained,

in service, by the respondent board is fully proved. In this way, it can be said that there is violation

of section 25-G & H of the Act. In 2007 LLR 72 SC, State of Haryana Vs. Dilbagh Singh, the

Hon’ble Apex Court has held as under:

“Respondent was serving as beldar in PWD (B&R) and his services were terminated

on 25.12.1999-Labour Court found that person junior to respondent was still working

and thus there was breach of section 25-G and 25-H of the Act. Court directed

reinstatement.”

23. Since, on record, it stands proved that Shri Ashok Kumar, who has been appointed in

1993, is junior to the petitioner, he has been able to show that there has been breach of sections

25G & H of the Act. It is further to be observed that if the petitioner had absented himself, the

respondent board was required to afford him opportunity to either join duties or to face

consequences, as per law/rules. Here, I may like to point-out that as per the version of the

petitioner, he had intimated the respondent board regarding his mental illness. Even if, his such

version is not taken to be correct, still, it was required of the respondent to have issued him show

cause notice either to join duties on or before the date mentioned therein or that action in

accordance with law was proposed to be taken against him for having absented from duties. In

other words, it can be said that the respondent board was required to follow the principles of natural

justice by giving him an opportunity to explain his position.

667

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

24. Consequently, having regard to the entire evidence, which has come on record, I,

without hesitation, hold that on account of his mental illness, the petitioner could not perform, his

work/job and the defence version that he had abandoned the job, is not proved. In this way, it can

be said that his services had stood illegally terminated by the respondent in violation of the

provisions of the Act. Accordingly, my answer to this issue is in “yes”.

Issue No. 2

25. Since I have held under issue No.1 above, that the petitioner was illegally terminated

by the respondent in violation of provisions of Act, 1947, the petitioner is entitled to reinstatement,

with continuity and seniority but without back wages, in view of the peculiar circumstances of the

case. Accordingly this issue is decided in favour of petitioner and against the respondent.

Issue No. 3.

26. In support of this issue, no evidence has been led by the respondent. Moreover, I find

nothing wrong in this petition which is held to be perfectly maintainable in the present form.

Accordingly, this issue is decided in favour of the petitioner and against the respondent.

Issue No. 4

27. Also on this issue, no evidence has been led by the respondent to show as to how the

petitioner is estopped from filing this petition by his own acts, conduct and acquiesces. In view of

no such evidence on record, it can be safely concluded that the petitioner is not estopped from filing

this petition by his own acts, conduct and acquiesces. Hence, this issue is decided in favour of

petitioner and against the respondent.

Relief.

As a sequel to my above discussion and findings on issue No. 1 to 4, the claim of the

petitioner succeeds and is hereby allowed and the petitioner is ordered to be reengaged in service

forth-with with seniority and continuity but without back wages inview of the peculiar

circumstances of the case and as such the reference is answered accordingly. Let a copy of this

award be sent to the appropriate government for publication in the official gazette. File, after

completion, be consigned to records. aannounced in the open court today on this 31st March 2014.

A. S JASWAL,

Presiding Judge,

Labour court, Shimla.

_________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA

Ref. No. 97 of 2009

Instituted on 18.11.2009.

Decided on 3.3.2014.

Gabriel

Employees

Union,

INTUC,

Parwanoo,

District

Solan,

through

President/General Secretary.

..Petitioner.

668

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

VERSUS

1. Madan Lal Contractor, C/o M/s Federal Mogul Bearings India Ltd. Sector-II,

Parwanoo, District Solan, HP.

2. M/s Federal Mogul Bearings India Ltd. Sector-II, Parwanoo, District Solan, HP,

through its Managing Director.

..Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri R.K Khidta, Advocate.

For respondents: Shri Rahul Mahajan, Advocate.

AWARD

The reference for adjudication is as under:

“Whether the financial demands raised by the President/General Secretary, Gabriel

Employees Union, INTUC, Parwanoo, District Solan, HP vide demand notice dated

7.11.2006 (copy enclosed), before the management of M/s Gabriel India Ltd. Plot No.

5, Sector-2, Parwano and Shri Madan Lal Contractor of M/s Federal Mogul Bearings

India Ltd., Sector-II, Parwanoo, District Solan, HP. are legal, reasonable and

justified? If yes, what financial benefits the canteen workmen are entitled to as per

said demand notice, if not, what are its egal effects?”

2. The case of the petitioner, Gabriel Employees Union, INTUC, District Solan, HP

through its President/General Secretary (hereinafter referred as petitioner), is to this effect that the

workers working with the respondent company have formed union known as Gabriel Employees

Union which is duly registered and its registration number is 258. Shri Dwarka Nath is the duly

elected President of the union and that he has been authorized to file the claim petition on behalf of

the workers union. It is further said that workers namely S/Shri Hari Ram, Parshotam, Bheem

Bahadur, Mohinder Singh, Ganga Ram, Shiv Dass, Bhisham Singh, Narender Rana, Neter Bahadur,

Sheer Singh, Jagdish Cander and Bhag Chand, are working in the canteen and kitchen garden of the

respondents and that they are the members of the Union. Initially, all the workers had been

employed by respondent no.2, which is clear from the ESI Card, issued by the competent authority.

However, later on, they have been shown to have been engaged through respondent no.1. Thus, at

present, all the workers have been working with respondent no.2 through respondent no.1. It is

further averred that even, respondent no.1, has been the employee of respondent no.2 and is getting

monthly salary. Just to frustrate the rightful claim of the workers and in order to save themselves

from their liability, the company has shown him (respondent no.1) as contractor. Earlier, the parties

used to settle their respective claims including increase in salary of the workers, by way of long

term settlements either for three years or five years. Settlement, annexure P-3, was made for three

years and the later on, settlement annexure P-4, for five years. After the expiry of every settlement,

new settlement used to be executed between the parties by increasing their salaries as well as other

benefits. The workers also used to perform their duties, as agreed in the settlement. The last long

term settlement between the workers union and respondents had been executed for the period w.e.f.

1.10.2001 to 30.9.2006, as per annexure P-4. Ultimately, after the expiry of this settlement, the

workers, through its union, approached the respondents for the settlement of demands but due to

their (respondents) adamant attitude, no settlement could be arrived at between the parties. In this

way, the workers had been forced to file demand notice through Union. Even, during conciliation

proceedings, the needful could not be done due to adamant attitude of the respondents. It is further

669

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

said that the demands, raised by the workers, through its union, are genuine and the same deserve to

be allowed because due to heavy inflation, their salaries deserve to be increased. It is further

asserted that the respondents are bound to settle their demands as their wages and other benefits,

used to be increased only by way of settlement. Since, the respondents are not settling their

demands, it amounts to unfair labour practice for which they (respondents) deserve to be punished

and the demands of the workers, raised through its demand notice dated 7.6.2006, deserve to be

allowed and the respondents are required to be directed to pay the same from the date of expiry of

earlier settlement i.e w.e.f. 30.9.2006. It is further said that the work load of the workers has also

got increased as initially, there had been 150 workers who used to take meals and now, at present,

there are 350 workers and staff members who are taking food/meals, in the canteen. As far as the

strength of the workers, working in the canteen, is concerned, it has remained same. It is further

maintained that despite the expiry of the earlier settlement, salary and other benefits of the workers

have not been increased by the respondents. Further, both the respondents are liable to accept their

financial demands as they (workers) have been doing work in the canteen which is owned and

possessed by the respondent no.2 and shown to have been employed through respondent no.1.

Thus, they (respondents) become jointly and severely liable to accept their demands and to pay the

benefits as raised in the demand notice. Against this back-drop, a prayer has been made to accept

all the demands, raised in demand notice dated 7.11.2006.

3. The petition has been contested by respondent no.1 (Madan Lal, Contractor), by

raising preliminary objections including maintainability and that the petitioner has concealed true

and material facts from the Court. On merits, it has been asserted that the canteen is being run by

the replying respondent and that the workers are his employees. As far as M/s Federal Mogul

Bearings India Ltd., (respondent no.2), is concerned, it has nothing to do with the workers, as per

their names mentioned by the petitioner. It is further clarified that the replying respondent has been

running the canteen since the time of Gabriel India Ltd., and subsequently M/s Anand Engine

Components Ltd. The workers of the replying respondent are not the members of Gabriel

Employees Union having registration no. 258 and that Shri Dwarka Nath has not been authorized to

raise the demand notice and to file the claim petition. Under the Contract Labour (Regulation and

Abolition) Act, 1970 (hereinafter referred as Contract Labour Act) the replying respondent has got

licence and M/s Federal Mogul Bearings India Ltd., (respondent no.2) is also registered under the

Contract Labour Act. It has been denied that the workers have been performing their duties as per

the settlement. In fact, they have flouted the settlement many times. The names of Hari Ram and

Bhag Chand are in respect of the employees of replying respondent, as per ESI Card. The benefits

to the workers are being paid by the replying respondent but the additional benefits could not be

paid for want of financial viability. The demand notice, as raised, is false and frivolous. It is further

averred that, at present, the wages and other benefits, which have been paid to the workers, are far

above than what the similar workers are getting while being employed in other canteens, in

different establishments. At no point of time, there had been more than 170 to 190 workers and

staff members to take food/meals in the canteen. It is further averred that the replying respondent

cannot accept the unjustified demands raised by the petitioner. Other allegations denied.

4. M/s Federal Mogul Bearings India Ltd., (respondent no.2), has also contested the claim

of the petitioner on having raised preliminary objections including maintainability and that the

petitioner has concealed true and material facts. It has further been clarified that there had been no

relationship of the employer and the employees between the replying respondent and that of the

workers, employed by Madan Lal, Contractor. In fact, the workers employed by canteen contractor

are the employees of Madan Lal, who is responsible for the payments of ESI, EPF etc. and that the

replying respondent has been unnecessarily arrayed as party in the claim petition. On merits, it has

been asserted that the Gabriel India Ltd., had been set-up in 1979, in Parwanoo, District Solan H.P

and in the month of March, 2007, it was demerged in to a separate company i.e M/s Anand Engine

Components Ltd. In Feb., 2008, Federal Mogul Components took control of M/s Anand Engine

670

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Components and renamed it as Federal Mogul Bearings India Ltd. As far as Madan Lal, Contractor,

is concerned, he has got licence for providing contract labour to respondent no.2 under the Contract

Labour Act and the replying respondent has also the registration to employee contract labour under

the Contract Labour Act. Thus, at no point of time, the said workers, employed by Madan Lal

Contractor, were the employees of replying respondent. Their ESI Cards only reflect the name of

Gabriel India Ltd., in the address column and do not specify that Hari Ram and Bhag Chand are the

employees of Gabriel India Ltd. When, demand notice dated 7.11.2006, was raised, Gabriel India

Ltd., had filed a reply during conciliation proceedings and subsequently, a reply was also filed by

M/s Anand Engine Components Ltd., whereby it had been specifically stated that the workers,

working in the canteen, were not their employees and that the union had no legitimate right to raise

any demand or dispute. It is also averred that whenever, settlements had been entered into between

Madan Lal, Contractor/canteen workers and Gabriel Employees Union, the replying respondent had

not been party to the same. Even, in the reply, filed to the demand notice, before Labour-cum-

Conciliation Officer, Madan Lal Contractor had submitted that the canteen workers had been

employed by him and that they were getting more than the minimum wages. Apart from this, they

had also been getting other benefits/allowances. Other allegations denied.

5. By filing rejoinders to the replies filed by respondent no.1 & 2, the petitioner has

reaffirmed its own allegations by denying those of the respondents.

6. Pleadings of the parties gave rise to the following issues which were struck on

21.4.2011.

1. Whether the demands having been raised by the petitioner union are reasonable

and justifiable as alleged?

..OPP.

2. If issue no.1 is proved in affirmative, whether the petitioner union is entitled for

financial benefits as prayed?

..OPP.

3. Whether this petition is not maintainable as alleged?

..OPR.

4. Relief.

7. I have heard the learned counsel for the parties and have also gone through the record

of the case carefully.

8. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no. 1

Decided accordingly in “Yes”.

Issue no. 2

“Yes” accordingly.

Issue no. 3

No.

Relief.

Reference answered in favour of the petitioner and against the respondents,

per operative part of award.

Reasons for findings

Issue no.1& 2.

9. Being interlinked, both these issues are taken up together for discussion and decision.

10. It has been specifically alleged by the petitioner that the workers, as per their names

mentioned in para no.2 of the petition, are the employees of respondent no.2 and that they have

671

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

been shown/alleged to have been engaged through respondent no.1, contractor of the canteen.

When, regard is given to the reply, filed by respondent no.2, it has been specifically stated that the

workers are the employees of Madan Lal, Contractor, having licence under Contract Labour Act

and that they are being paid wages etc. by him. In his reply, Madan Lal, Contractor (respondent

no.1) has also submitted that the workers, as mentioned in the petition, are his workers and have

been employed by him and that the salary/wages, to them, are being paid by him. Before, I proceed

further it needs to be established that as to whether the workers of the petitioner union, as have

been named above, are the employees of respondent no.1 or that of respondent no2.

11. In his affidavit, Shri Dwarka Nath (PW-1) has restated the facts as have been

mentioned in the petition, on all materials counts, including that he is a duly elected President of

the union and authorized to filed the claim petition and to give evidence on behalf of the workers

union. It has also been specifically stated by him that the workers of the union had been employed

by respondent no.2 but later on, they were shown to have been engaged through respondent no.1. It

has also been stated that respondent no.1, himself is the employee of respondent no.2, on monthly

salary, and that the company has shown him as contractor just to frustrate the rightful claim of the

workers. In evidence, copies of documents Ex. P-1 to Ex. P-35 have also been tendered. In the

cross-examination, he denied that the workers of Madan Lal, Contractor, had never been the

members of their union. In the ESI Card, the name of the employer is not mentioned. Further,

stated that, in it, the name of the principle employer has been mentioned as Gabriel India Ltd. He

denied that the company had no concern with Ex. P-7, (minutes of the canteen committee meeting,

held on 10.6.1986). He expressed his lack of knowledge that ESI, EPF & other benefits, on behalf

of canteen workers, are being paid by Madan Lal Contractor. He cannot produce ESI Card about

employing workers by the company. He explained that the ESI Code number of company workers

and the canteen workers is the same. He admitted that every worker has different ESI number. He

denied that the petitioners are the workers of Madan Lal, contractor only.

12. To the similar effect is the evidence of Mahender Singh (PW-2).

13. Ex. R-1, is the affidavit of Madan Lal, canteen contractor, which he tendered, while

appearing in the witness box as RW-1. In his affidavit, he stated that under the Contract Labour

Act, he has got a licence and under the same Act, Federal Mogul Bearings India Ltd., has also

registration. He further stated that the workers S/Shri Hari Ram and others have been employed by

him, in the canteen, which is being run by him. To them, he is paying the wages, which are more

than minimum wages. He further stated that he is not the employee of M/s Federal Mogul Bearings

India Ltd., (respondent no.2).

Independently, he is running the canteen, being contractor, and has also employed his

workers S/Shri Hari Ram, Parshotam and others. All the statutory compliances, under the Labour

Laws, including contribution under ESI, EPF and MP Act, are being done by him. When, cross-

examined on behalf of respondent no.2, he admitted that one worker namely Bhim Bahadur has

expired. He maintains the record under labour laws including EPF, attendance register, payment of

wages etc. To the workers, he has been paying the wages. HP-5475-A, is his EPF code number. He

has not got independent ESI Code number but the contribution in this regard is being made by him.

He had an agreement with Gabriel Employees Union, in which respondent no.1, was not party.

When, crossexamined on behalf of the petitioner, he stated that the licence of the contractor was

taken by him in the year, 1988. Prior to that, he had been working with M/s Gabriel India Ltd. and

till date, he has been doing work there. From the company, he does not get any salary. Further

explained that, he gets commission to the tune of Rs. 5,000/- to 7,000/-, from the company. With

the company, he has agreement to run the canteen, as per Ex. RA. He admitted that in the year,

1981, he had no licence of contractor-ship. At that time, he was territorial subedar manager. He

admitted that the canteen is of the company and it is also situated in its premises. The bills Ex.

672

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

RA-1 to Ex. RA-4, have been issued in the name of the company regarding the articles/goods

which were supplied to it. The company has constituted a canteen committee as per Ex. RA-5. His

name does not figure in that list as per Ex. RA-5. In the canteen, the workers get food on subsidized

rates. The money, on subsidy, is paid by the company. He denied that some workers were already

employed in Gabriel India Ltd., before his joining the same. He denied that S/Shri Mahender Singh,

Bhim Bahadur, Hari Singh and Jagdish had been employed in the year, 1980. Self stated that they

had been employed in the year, 1983-84. He cannot increase the wages of the workers till the

management increases his money. Regarding payment of salaries, bonus etc., to the workers, he

raises bills, the money of which is paid by the company. He admitted that HP- 5475 is the code of

the company. Further stated that Sub Code HP 5475-A is his code. The ESI code is that of the

company. He denied that the workers are the employees of the company.

14. Shri Balvinder Singh, RW-1, in his affidavit, EX. RW-1/A, has stated that S/Shri Hari

Ram and others are the employees of Madan Lal, contractor, and that they are not the

workers/employees of M/s Federal Mogul Bearings India Ltd., (respondent no.2). In the cross-

examination, he has stated that since 6.9.1982, he has been working in the company. Before his

joining, the company (Gabriel India Ltd.), was already in existence. He had got appointment in

Gabriel India Ltd. At that time, the canteen was being run in the company. He denied that the

canteen was of company. He admitted that the licnece of Madan Lal, Contractor, was issued on

19.2.1987. He is working as Manager, HR, in the company. He does not know as to who had

appointed the workers, who were working in the canteen, when he was appointed, in the company.

In the year, 1981, they had given the contract of canteen to Madan Lal, contractor. He does not

know that in the year, 1981, he (Madan Lal) was not registered. He has no such detail which could

go to show that the company pays money to Madan Lal contractor in order to run the canteen. He

clarified that the payments are being paid through Madan Lal. He admitted that bills Ex. RA-1 to

Ex. RA-4, have been issued in the name of the company. The company has constituted a canteen

committee. He has no such record which could go to show that by inviting tenders the contract of

the canteen had been given to Madan Lal, contractor. He does not know that since, 1980, there have

been 14 workers in the canteen. He denied that all the workers of the canteen are the workers of

respondent no.2.

15. Although, in the evidence of Madan Lal (RW-1), it has come that the workers, working

in the canteen, are his employees, to whom, the wages and other benefits are being paid by him but

when regard is given to his cross-examination, as conducted on behalf of the petitioner, it is

abundantly clear that in the year, 1988, he had obtained the licence. His evidence further goes to

show that since 1988 till date, he has been doing job in the company. Although, he does not get any

salary from the company but gets commission to the tune of Rs. 5000/- to 7000/-. In the evidence of

Shri Balvinder Singh (RW-1), it has come that Madan Lal, contractor had got the licence on

19.2.1987. It has been specifically admitted by Shri Madan Lal (RW-1), that in the year, 1981, he

was not having licence of contractor. He further made it clear that in the year, 1996, he was

Subedar Manager and that the canteen belongs to the company. Although, it has been denied by

him that S/Shri Mahender Singh, Bhim Bahadur, Hari Sing hand Jagdish had been employed in the

year, 1983-1984 but from his such evidence, it is quite clear that the said workers had been working

in the canteen prior to his getting licence of contractorship. When, he was not having the licence of

contractor-ship, at the time, when said Mahender Singh & others were employed as workers in the

canteen, the version of this witness (Madan Lal RW-1), that they had been employed by him is

totally wrong and false. On the other hand, it has been stated by Shri Dwarka Nath (PW-1), in his

affidavit, that the workers, working in the canteen, had been employed by respondent no.2 and that

later on, they have been shown to have been engaged through respondent no.1 (Madan Lal,

contractor). On the record, there are bills, Ex. RA-1 to Ex. RA-4, which have been issued in the

name of the company (M/s Federal Mogul Bearings India Ltd.). The evidence of Madan Lal (RW-

1) also goes to show that since, 1988, he has been doing the job in Gabriel India Ltd. and working

673

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

as such till date. I may make it clear that ,as is the version of respondent no.2, M/s Gabriel India

Ltd., which was set up in 1979, was demerged in to a separate company i.e M/s Anand Engine

Components Ltd., and in the month of Feb., 2008, M/s Federal Mogul Bearings India Ltd., took

control of said M/s Anand Engine Components and renamed it as M/s Federal Mogul Bearings

India Ltd., (respondent no.2). This goes to show that Madan Lal (respondent no.1), also became the

employee of respondent no.2. If he had been running the canteen, as contractor, on his own, there

was no necessity for the issuance of bills Ex. RA-1 to Ex. RA-4, in the name of the company. In

this way, having regard to the evidence, which has come on record, I have no hesitation in holding

that the workers of the petitioner union have been employed by the respondent no.2 but later on,

they were shown to have been engaged through respondent no.1. It has been held by Hon’ble Delhi

High Court in 2013, LLR 352, the management of Ashoka Hotel Vs. Their workmen and Anr.

that: “a contract between principal employer and contractor would be untenable if the

control of economic activities is in the hand of principal employer though salary to the

workmen was paid through the contractor for which the contractor was paid commission.”

16. In the case in hand, the evidence of Shri Madan Lal Contractor (RW-1), goes to show

that before entering in to settlements with the union/workers, he used to have discussion with the

company. If the workers had been the employees/workers of Madan Lal Contractor (respondent

no.1), there was no occasion for him to have discussions with the company before entering in to a

settlement with them. His such evidence goes to show that the control of the economic activities of

the canteen is with the principal employer (respondent no.2).

17. Now, the question arises as to whether the demands raised by the petitioner union are

reasonable and justified. In the petition, it has been mentioned that there had been two settlements,

annexure P-3 and P-4, between the parties. Ex. P-3, is the demand notice/letter for the increase of

wages. Ex. P-4, is the memorandum of settlement dated 1.3.2005. Its perusal goes to show that as

per its terms and conditions, the parties had agreed that the duration for the applicability of this

settlement was for five years i.e 1.10.2001 to 30.9.2006. It is further borne out that during the

currency of this settlement, financial benefits were to be available to the workmen, as per there

mention, given therein. In the evidence of Dwarka Nath (PW-1), it has come that demand notice

dated 7.11.2006, had been raised by the petitioner. The perusal of this demand notice goes to show

that the workers, through its union, had demanded increase in basic pay to the tune of Rs. 2500/-,

D.A Rs. 2000/- , washing allowance, Rs. 300/-, Education allowance Rs. 500/- heating allowance

Rs. 200/-. There was also demand to increase LTA by Rs. 1000/- and also to increase loan on all

kinds by Rs. 25000/-. The annual allowance be increased by Rs. 200/- and bonus be given to the

extent of 30%. In the evidence of Madan Lal (RW-1), it has come that the workers are being paid

the same salary/wages which they were getting in the year, 2006. He admitted that demand notice

Ex. P-6, had been served upon him by workers union. He admitted that on 28.9.2001, a demand

notice had been given to the company, the copy of which is Ex. P-5. As per this demand notice, he

had entered into a settlement with the workers. From the evidence, which has been referred to

above, it is quite clear that there has been no increase in the wages of the works since, 2006.

Memorandum of settlement dated 1.3.2005, Ex. P-4, which had come in to operation w.e.f.

1.10.2001 to 30.9.2006, has came to an end. The workers through its union, in my view, are

justified to seek increase in their basic pay+ annual increment, DA etc., as mentioned above, w.e.f.

1.10.2006, when the terms and conditions of the earlier settlement came to an end. The workers

have sought an increase in the basic pay to the tune of Rs. 2500/- and annual increment to the tune

of Rs. 200/-. Having regard to the inflation, which has taken place, this demand appears to be

reasonable and justified. The increase in basic pay + annual increment can be given w.e.f.

1.10.2006. Similarly, the demand of the workers for DA in the sum of Rs. 2000/-, is also held to be

justified. Another demand of the workers is for increase in their annual leave. In this regard, no

specific evidence has been led but still I am of the view that they (petitioners) should be entitled for

increase in annual leave at par with the government instructions/notifications, issued from time to

674

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

time, regarding the workers, working in the various establishments. I further hold that their other

demands for washing allowance, education allowance, heat allowance, as per their demand notice

Ex. P-6, are also reasonable and justified. As far as other demands of the workers are concerned, as

per Ex. P-6, in my view for want of specific and cogent evidence, the same are not proved to be

justified. Accordingly, the workers of the petitioner union are held entitled for financial benefits, as

under:

Increase in basic pay + annual increment w.e.f. 1.10.2006, Rs. 500/- per year.

Increase in D.A w.e.f. 1.10.2006, Rs. 400/- per year.

Increase in washing allowance, w.e.f. 1.10.2006 Rs. 80/- per year.

Increase in Education allowance w.e.f. 1.10.2006, Rs. 100/- per year.

Increase in heat allowance w.e.f. 1.10.2006, Rs. 25/- per year.

Increase in annual leaves at par with the instructions/notifications, issued by the

government, from time to time, regarding the workers, working in the various

establishments.

And as such, both the issues are decided partly in affirmative accordingly.

Issue no. 3

18. As per objection, taken by respondent no.1, the petition is said to be not maintainable

because the petitioner has concealed true and material facts from the Court. Respondent no.2, has

alleged the petition to be not maintainable on the plea that the workers, as per their names given in

the petition, are not its employees. It has been held by me that the workers are the employees of

respondent no.2, and that they have been shown to be the employees of the contractor (Madan Lal)

just to frustrate the rightful claim of the petitioner. In these circumstances, it cannot be said that this

petition is not maintainable against respondent no.2. Since, respondent no.1, has alleged that the

workers are his employees, from his such stand, it can also not be said that this petition is not

maintainable against him. Accordingly, I hold this petition to be maintainable against both the

respondents and as such my answer to this issue is in “No”.

Relief.

As a sequel to my findings on the aforesaid issues, this petition deserves to be allowed and

accordingly, I allow it partly, with the result, the petitioner union is held to be entitled to the

following financial benefits, from respondent no.2 (M/s Federal Mogul Bearings India Ltd.).

1. Increase in basic pay + annual increment w.e.f. 1.10.2006, Rs. 500/- per year.

2. Increase in D.A w.e.f. 1.10.2006, Rs. 400/- per year.

3. Increase in washing allowance, w.e.f. 1.10.2006 Rs. 80/- per year.

4. Increase in Education allowance w.e.f. 1.10.2006, Rs. 100/- per year.

5. Increase in heat allowance w.e.f. 1.10.2006, Rs. 25/- per year.

6. Increase in annual leaves at par with the instructions/notifications, issued by the government,

from time to time, regarding the workers, working in the various establishments.

Consequently, in view of the findings arrived at by this Court while deciding this petition,

the reference, as made by the appropriate government, stands answered accordingly in favour of the

675

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

petitioner and against the respondents. It is further made clear that since, it has been held by

me, that the workers of the petitioner union are the workers of respondent no.2, hence,

respondent no.2 is liable to make the payments of the aforesaid financial benefits. Let a copy

of this award be sent to the appropriate government for publication in official gazette. File, after

completion be consigned to records.

Announced in the open court today on this 3rd day of March, 2014, in the presence of parties

counsels.

A. S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_________

App.39/2013

Sh. Kuldeep Kumar V/s Sh Bali Ram & others

15.3.2014:-

Present:-

Sh A.K.Sharma , AR for the petitioner.

None for the respondent.

In view of the statement of Shri A.K.Sharma AR for petitioner, already a compromise has

been effected between the parties , Thus , this petition stands disposed of as having been

compromised. Let a copy of this order be sent to the appropriate government for publication in the

official gazette. File , after completion, be consigned to records.

Announced:-

15.3.2014

Sd/-

Presiding judge

Labour Court, Shimla.

________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA

Ref no. 117 of 2010.

Instituted on 27.10.2010.

Decided on 3.3.2014.

Prem Chand S/o Shri Beli Ram R/o Village Koel Sanog, P.O Bani Materni, Tehsil Arki,

District Solan, HP.

..Petitioner.

VS.

1. Conservator of Forest, Talland Shimla, HP.

2. Divisional Forest Officer, Wild Life, Shimla Division, Shimla, HP.

..Respondents.

676

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri Sanjay Bhardwaj, Advocate

For respondent: Shri Surender Negi, Ld. DDA.

AWARD

The reference for adjudication, is as under:-

''Whether verbal termination of the services of Shri Prem Chamd S/o late Shri Beli Ram

daily wage workman by the Divisional Forest Officer, Wild Life Division, Shimla HP w.e.f.

1.4.2000 without serving chargesheet, without holding enquiry and without complying with

the provisions of the Industri al Disputes Act, 1947, whereas junior to him retained by the

above employer, is legal and justified? If not, to what back wages, service benefits and

relief the above named workman is entitled to?”

2. The contention of the petitioner is to this effect that he was engaged as beldar on

2.2.1996, by the respondents and worked as such, till 1998, when he was assigned the work of

Mali. In that capacity, as Mali, he had worked in H.P Secretariat for the maintenance of parks and

thereafter, he was deployed, as Mali, in Raj Bhawan, Shimla. He had also worked in the parks at

New Shimla and also made chuk dam in Raj Bhawan. Thereafter, the respondents had decided to

transfer the management of the parks to the Municipal Corporation, Shimla along-with the staff

working in the parks. However, later on, neither he was transferred to Municipal Corporation,

Shimla nor retained by the respondents. It is further alleged that on 1.4.2000, his services were

orally terminated, without serving any notice, upon him, as was required under the Industrial

Disputes Act, 1947 (hereinafter referred as Act). Prior to his retrenchment, he had served the

respondents for more than 240 days in each calendar year from the date of his engagement, as

beldar. Since, the respondents neither issued him one month’s notice, in writing, indicating the

reasons for his retrenchment nor paid any compensation in lieu thereof, his retrenchment is in

violation of the provisions of section 25-F of the Act. Apart from this , the persons namely S/Shri

Ginder Singh and Ramesh Chand, who had been engaged later on, were not retrenched by the

respondents. On having felt aggrieved by his oral termination, he had approached the erstwhile

Administrative Tribunal (hereinafter referred as Tribunal), in order to seek relief against his illegal

termination. His such application was registered as O.A No. 1995 of 2000. However, the same was

dismissed on 13.1.2006, for want of jurisdiction. Since, his services had been disengaged without

following the due procedure as prescribed under the Act, he served a demand notice upon the

respondents. Although, during the conciliation proceedings, the respondents had agreed to reengage

his services but later on, they failed to do the needful. In these circumstances, a reference came to

be made to this Court by the appropriate government. It is further alleged that after his termination,

he has not been gainfully employed. Against this backdrop, a prayer has been made to reengage

him in service w.e.f. 1.4.2000, along-with backwages, seniority and other consequential service

benefits.

3. The claim Petition has been contested on having raised various preliminary objections,

including jurisdiction, as the respondent department is not an industry. Further, the petitioner had

been engaged against a work being carried out, exclusively under Foreign Aided Project called

Eco-Development NORAD Project (hereinafter referred as Project), which was for a limited tenure.

The forest department (respondent) was only the executing agency. Since, the Project stood closed

for want of availability of funds, all daily waged labourers, including the petitioner, were

automatically disengaged. Since, the petitioner had been engaged purely on seasonal and temporary

works, depending upon the life of Project, no vested right had been created in his favour. It is

further pleaded that as per the law laid down by the Hon’ble Apex Court, no direction to reengage a

677

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

worker can be given by the Court when the Project, in which he had been engaged, had come to an

end. On merits, it has been asserted that the petitioner had been engaged in the Project on daily

wages basis, as per requirements of seasonal work, w.e.f. 1.2.1996. It has been specifically denied

that he had been engaged as beldar on 2.2.1996 and was assigned the work of Mali, as alleged. The

Project, a foreign aided one, was being executed by the wild life division of forest department

where the services of the petitioner were being utilized for carrying labour works. On the

completion of the Project, the work was stopped and thus, there is no question of disengagement of

the petitioner. It is further maintained that as per settled position of law, the persons employed in a

Project have no vested right after its closure. The services of all the workmen had come to be

terminated, automatically, after the completion of the Project. Thus, the services of the petitioner

also stood terminated as the same were no longer required. Hence, no question arises for the

violation of section 25-F of the Act. It is further asserted that the services of Shri Ginder Singh,

daily wager, were also terminated by the department but he was reengaged as per the order passed

by the Hon’ble Tribunal. It is further clarified that the services of Shri Jeet Ram, daily wager, were

also reengaged, as per the orders passed by the Hon’ble Tribunal. The question of paying back

wages along-with interest to the petitioner does not arise. Other allegations either admitted or

denied.

4. By filing rejoinder, the petitioner has reaffirmed his own allegations by denying those

of the respondents.

5. Pleadings of the parties gave rise to the following issues which were struck on

3.12.2011.

1. Whether the termination of services of petitioner by the respondent w.e.f.

1.4.2000, is in violation of the provisions of Industrial Disputes Act, 1947? ..OPP.

2. If issue no.1 is proved in affirmative, to what relief, the petitioner is entitled to?

..OPP.

3. Relief.

6. I have heard the learned counsel for the parties and have also gone through the record

of the case carefully.

7. For the reasons to be recorded hereinafter while discussing issues for determination my

findings on the aforesaid issues are as under.

Issue no. 1

Yes.

Issue no. 2

Entitled to reinstatement in service with seniority and continuity but without

back wages.

Relief.

Reference answered in favour of the petitioner, per operative part of award.

Reasons for findings

Issue no.1 &2.

8. Both these issues, being interlinked, are taken up together for discussion and decision.

9. The contention of the petitioner is that he had been engaged as beldar on 2.2.1996, and

his services came to be terminated, orally, on 1.4.2000, in violation of the provisions of section 25-

F of the Act. On the other hand the defence version is to this effect that the petitioner had been

678

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

engaged, on daily wages basis, in the Project, being executed by wild life division, Shimla w.e.f.

1.2.1996, in order to do labour work. It has been denied that on 2.2.1996, he had been engaged as

beldar. The defence version is further to this effect that after the completion of the Project, the work

was stopped and thus, there was no question of disengagement of the services of the petitioner.

10. Learned Counsel appearing on behalf of the petitioner has submitted that from the

evidence, on record, it stands duly proved that the petitioner had been engaged in the year, 1996

and that in each calendar year, he had been working for more than 240 days. Even, in the calendar

year preceding his termination, he had completed 240 days. Ld. Counsel further urged that there is

no evidence, on record, which could go to show that the services of the petitioner had been engaged

for a specific period or that the same were to come to an end with the completion of the work of the

Project. In these circumstance, his services could not have been terminated without having

complied with the provisions of section 25-F of the Act. Ld. Counsel further urged that since, the

services of the petitioner had been disengaged without complying with the provisions of section 25-

F of the Act, he deserves to be reinstated in service with seniority and continuity along-with full

back wages.

11. On the other hand Ld. Dy. DA appearing on behalf of the respondents submitted with

vehemence that since the services of the petitioner had been engaged in order to do the labour

work, in the Project, the same stood automatically disengaged when the Project came to be closed

due to non availability of funds. He further urged that some of the workers had to be reengaged by

the respondents on the orders of Hon’ble Tribunal. Since, the services of the petitioner had come to

be disengaged due to closure of the Project, neither, he is entitled to be reengaged in service nor for

other benefits including back wages etc.

12. It has been stated by petitioner, when he appeared in to the witness box as PW-1, that

he had been engaged as beldar on 2.2.1996, and his services were disengaged on 1.4.2000, without

any notice/compensation. In each calendar year, he had been working for more than 240 days. Ex.

Pw-1/A is his mandays chart. Along-with him, S/Shri Ginder Singh, Ramesh Chand and Jeet Ram

had also been engaged and that they are still in job/service. After his disengagement, he had filed a

case before Tribunal, which was dismissed. Thereafter, he had raised a demand notice. His juniors

namely S/Shri Goving Singh and Ishwar Dass are still in job. One Shri Jeet Ram had been engaged

by the respondent on the orders of the Court. In the cross-examination, he denied that he had been

engaged, on daily wages, for doing seasonal work w.e.f. 1.2.1996. He further denied that after the

completion of the work of the Project, his services stood disengaged automatically. He admitted

that Shri Ginder Singh, daily wager had also been disengaged along-with him but further explained

that by the orders of the Court, he was reengaged.

13. Shri Sunder Lal Sharma, PW-2, stated from the summoned record that Shri Ginder

Singh was engaged as casual labourer in the Project w.e.f. 1.4.1995 and that his mandays chart is

Ex. PW-2/A. He is still in service. Shri Jeet Ram had also been engaged in the Project on 1.5.1996

and his mandays chart is Ex. PW-2/B. He is still in job. Both the said workers had been reengaged

on the orders of the Court, the copies of which are Ex. PW-2/C and Ex. PW-2/D. In the cross-

examination, he admitted that both the said workers had been engaged in the Project which stood

closed in the month of March, 2000 and for this reason, the workers also stood automatically

disengaged. For getting the petitioner reengaged, they have not received any orders from the Court.

The department had not engaged any junior to the petitioner on its own. The labourers, who have

been working, had been engaged on the orders of the Court.

14. Shri Satish Kumar (RW-1) has stated that the petitioner had been engaged on 1.2.1996

in the Project as daily wager in order to do seasonal work. He had not been engaged on 2.2.1996.

The petitioner had also not been assigned the work of Mali. After the completion of the work of the

Project, all the workers stood disengaged automatically. Shri Ginder Singh had to be reengaged on

679

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

the orders of the Tribunal. The petitioner had also filed O.A No. 1995 of 2000, before the Tribunal

which was dismissed for want of jurisdiction. The department had never agreed to reengage the

petitioner. The daily wagers who had to be reengaged, were on the orders of the Tribunal. In the

crossexamination, he had admitted that the petitioner had been appointed as beldar on 2.2.1996 and

that when his services were disengaged, no notice was issued. He further admitted that the

petitioner had not been engaged for seasonal work. There is further admission that the petitioner

had not been engaged for Project.

15. When regard is given to the cross-examination of RW-1 Shri Satish Kumar, it is

abundantly clear that he admits that the petitioner had not been engaged, particularly, for the

Project. His evidence further goes to show that before disengaging his services, he had neither been

issued any notice nor paid compensation. Ex. PW-1/A is the mandays chart of the petitioner which

goes to show that in the calendar year preceding his termination, he had completed 240days. There

is also no evidence, on record, which could go to show that while engaging the services of the

petitioner, he had been told that his engagement was only for a particular period or till the life of

the Project. In these circumstances, when the petitioner had completed 240 days in the calendar

year preceding his termination, the respondents were required to have complied with the provisions

of section 25-F of the Act. It has also been made clear by the petitioner that when his services had

been disengaged, he had filed case/O.A before the Tribunal which stood dismissed for want of

jurisdiction. Thereafter, he raised a demand notice and in consequence thereof, a reference came to

be made to this Court, by the appropriate government. The evidence, which has been led by the

petitioner, further goes to prove that S/Shri Ginder Singh and Jeet Ram had also been disengaged

along-with the petitioner but later on, they stood reengaged upon the order of the Court, the copies

of which are Ex. PW-2/C and Ex. PW-2/D. In the evidence of Sunder Lal (PW-2), it has come that

both the said workers are still in job and that their mandays chart are Ex. PW-2/A (Shri Ginder

Singh) and Ex. PW-2/B (Shri Jeet Ram). Considering all the facts and circumstances, the petitioner

has been able to prove, on record, that his services had been illegally terminated/disengaged by the

respondent in violation of the provisions of section 25-F of the Act. Accordingly, I hold so.

16. The next question which arises for determination is for what benefits, the petitioner is

entitled to. Since, S/Shri Ginder Singh and Jeet Ram have been reengaged by the respondents, this

clearly goes to show that the contention of the respondents that the services of the petitioner and

other workers had been engaged during the life time of the Project, is not correct. Already, I have

observed that even there is no such document, having been brought on record by the respondents,

which could go to show that at the time of engaging the services of the petitioner and other

workers, they had been made known that their engagement was only for a specific period or

coterminus with the life of the Project. I may also like to point out that since S/Shri Ginder Singh

and Jeet Ram, who had also been disengaged along-with the petitioner, have been reengaged on the

order of the Tribunal, the petitioner also deserves o be reinstated in service. Ld. Counsel for the

petitioner has submitted that the petitioner could be reengaged along-with back wages. Although, a

plea has been taken by the petitioner that after his termination, he is not gainfully employed but

when regard is given to his statement as PW-1, he has not stated even a single word that after his

disengagement, he is not gainfully employed. Undoubtedly, Ld. Counsel for the petitioner has

relied upon Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and

others (2013) 10 SCC 324 in support of his contention that the petitioner is entitled to full back

wages but in my view the facts of the present case are entirely different because the reference

which has been made to this Court is dated 13.10.2010, whereas the petitioner had been terminated

from service on 1.4.2000. The petitioner cannot be granted back wages for his own lapses/mistake

in having taken recourse before the Tribunal than to have approached this Court which had the

jurisdiction to decide his case. In number of judgments of the Hon’ble Apex Court, it has been held

that in the event of reinstatement of a worker, the grant of back wages is not automatic. The

Hon’ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla has ruled

680

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

that “full back wages cannot be granted mechanically, upon a order of termination be declared

illegal. It is further held that reinstatement must not be accompanied by payment of full back wages

even for the period when the workman remained out of service and contributed little or nothing to

the Industry”.

17. Consequently, for what has been stated and observed above, the petitioner is held

entitled to be reinstated in service with continuity and seniority but without back wages. Thus, both

these issues are decided in favour of the petitioner and against the respondent.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and

the petitioner is ordered to be reinstated in service forth-with with seniority and continuity but

without back wages. Consequently, the reference stands answered in favour of petitioner and

against the respondent. Let a copy of this award be sent to the appropriate government for

publication in official gazette. File, after completion be consigned to records.

Announced in the open court today this day of 3rd March, 2014 in the presence of parties

counsels.

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla

__________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA CAMP AT NALAGARH

Ref no. 101 of 2009

Instituted on 18.11.2009

Decided on 17.1.2014

Pushpa Devi W/o Shri Purshotam Singh C/o Satish Kumar, President HP AITUC, House

no. 276, Phase III, Housing Board, Baddi, District Solan, HP.

..Petitioner.

VS.

The Managing Director M/s Hemma Herbs Pvt. Ltd., 39 Industrial Area, Barotiwala,

District Solan. HP.

..Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri J.C Bhardwaj, AR.

For respondent: Shri Rajeev Sharma, Advocate.

AWARD

The reference for adjudication, is as under:-

''Whether termination of the services of Smt. Pushpa Devi W/o Shri Purshotam Singh by the

management of M/s Hemma Herbs Pvt. Ltd., 39 Industrial Area, Barotiwala, District Solan.

HP w.e.f. 5.6.2008, without following the provisions of Industrial Disputes Act, 1947, is

legal and justified? If not what relief of service benefits including re-instatement, back

wages, seniority and compensation the aggrieved workman is entitled to?”

681

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

2. Briefly, the case of the petitioner is that on 5.6.2006, she was employed by the

respondent company (hereinafter referred as respondent). At the time of her engagement, the

manager of the respondent had got signed some blank papers from her. With ulterior motive, the

respondent had terminated her services, orally, since 5.6.2008. Preceding twelve calendar months

from the date of her termination, she had completed 240 days. It is further averred that the

respondent had made a cock and bull story by alleging that she had submitted her resignation. As a

matter of fact, her signatures, which had been obtained on the blank papers, at the time of her

engagement, might have been used by the management of the respondent in order to fabricate/forge

her alleged resignation. In case, she had resigned from service and that her alleged resignation had

been accepted, such documents could have been brought to the notice of Labour-cum-Conciliation

Officer, Baddi, which the respondent did not produce. In this way, without having complied with

the provisions of section 25-F and 25-N, her services had been illegally terminated/retrenched.

There is also violation of section 25-H of the Act because after her retrenchment, the respondent

had engaged fresh hands/workers. Against this backdrop, a prayer has been made for her

reengagement along-with full back wages and other incidental benefits like continuity in service

and seniority.

3. By filing reply, the respondent has contested the claim of the petitioner, on having

raised various preliminary objections, including maintainability. On merits, it has been asserted that

the petitioner had submitted her resignation on 4.6.2008, which was accepted by the management

of the respondent. Thereafter, she was paid her full & final financial dues vide cheque no. 702678

dated 6.6.2008, drawn at ICICI Bank Ltd., for a sum of Rs. 4557/-. It is further averred that as per

the certificate issued by the concerned Bank, the petitioner had got that cheque encashed/cleared. In

this way, on having resigned from service, the petitioner, accepted the financial dues which were to

be paid to her. It has been denied that her resignation had been forged/fabricated, as alleged. In

case, there had been any forgery/febrication, on the part of the respondent, regarding her

resignation, she could have made a complaint, in the regard, to the co-workers or the union which

exists in the factory. It has been further clarified that there has been workers union in the factory of

the respondent and there are also offices of SDM, Labour Inspector, Dy. SP etc., situated at Baddi.

The question of retaining junior or senior does not arise because the petitioner had resigned from

service. It is further maintained that the petitioner is gainfully employed and earning more amount

than what she was getting while in service of the respondent. Other allegations denied.

4. By filing rejoinder, the petitioner has reaffirmed her own allegations by denying those

of the respondent.

5. On the pleadings of the parties, the following issues were struck on 18.5.2011.

1. Whether the termination of the services of Smt. Pushpa Devi w.e.f. 5.6.2008 by

the management of M/s Hemma Herbs is illegal and unjustified?

..OPP.

2. Relief.

6. I have heard the learned counsel for the parties and have also gone through the record

of the case carefully.

7. For the reasons, to be recorded hereinafter, my findings on the aforesaid issues are as

under:

Issue no.1

No.

Relief.

Reference answered against the petitioner and in favour of respondent as per

award.

682

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Issue no. 1.

8. Whereas, the contention of the petitioner is that her services had been terminated,

w.e.f. 5.6.2008, in contravention of the provisions of the Act, but the defence plea is to this effect

that on 4.6.2008, she had submitted her resignation, which was accepted by the

respondentmanagement.

9. The Ld. Counsel for the petitioner has urged that the alleged resignation had been

forged/fabricated by the management of the respondent by using her signatures, which had been got

obtained at the time of her engagement/joining the services. He further submitted that if the

petitioner had submitted her resignation, then in all probabilities, the alleged full and final

settlement was to take place in her presence and not by sending the same through chequer. He

further contended that even the alleged resignation had not been accepted by the respondent. The

Ld. Counsel has also drawn my attention to the alleged resignation which contains the thumb

impressions of the petitioner. He further submitted that since the petitioner had demanded over

time, for this reason, her services had been terminated in contravention of the provisions of the Act.

He further urged that if the petitioner had submitted her resignation, even then, she could have been

taken back in service, during conciliation proceedings.

10. On the other hand, Ld. Counsel appearing on behalf of the respondent has urged that

from the evidence, on record, it is proved that the petitioner had resigned from service and that she

had not been terminated, as alleged. In case, her signatures had been got obtained on blank papers,

at the time of her engagement/appointment, regarding the same she could have made a complaint to

the union of the workers or even to the higher authorities, posted at Baddi including SDM, Dy. SP

etc. Even, at the time of raising demand notice, she could have stated/mentioned that her signatures

had been got obtained at the time of her appointment/engagement, which had been used by the

management of the respondent in forging/fabricating her resignation. Ld. Counsel further submitted

that when the reply to the demand notice, raised by the petitioner, had been filed, in it, the

respondent took a stand that she had resigned with her sweet will and also accepted full & final

financial dues, sent to her, through cheque. Ld. Counsel also submitted that from the resignation

dated 4.6.2008, it is abundantly clear that it had been accepted by the management of the

respondent. Apart from this, when the full & final financial dues had been sent to the petitioner,

through letter dated 6.6.2008, it had been brought to her notice that her resignation stood accepted

and the full & final financial dues, in the sum of Rs. 4557/-, were being sent to her, through cheque.

Ld. Counsel further contended that it is not the case of the petitioner, as set out in the demand

notice, that since she had demanded over time allowance, for this reason, her services were

terminated.

11. The question which is required to be determined by this Court is whether the petitioner

had resigned from service by submitting her resignation dated 4.6.2008, or, that her services had

been terminated, by the respondent, in contravention of the provisions of the Act. On the record, the

respondent has brought the demand notice which had been raised by the petitioner under section 2-

A of the Act. Undoubtedly, this demand notice has not been exhibited but its perusal goes to show

that, in it, the petitioner had not alleged that her signatures, which the management of the

respondent had got obtained, at the time of her engagement/appointment, had been used for getting

forged/fabricated her alleged resignation. Undoubtedly, it has been urged on behalf of the petitioner

that if the petitioner had submitted her resignation, then, the respondent was required to produce

record in this regard, before this Court. Here, I may mention that to the demand notice, raised by

the petitioner, the respondent had filed written submissions, wherein, it had been asserted that the

petitioner had tendered her resignation, with her sweet-will, on 4.6.2008, and that the same was

accepted by the management of respondent. In this reply, it has also been mentioned that she had

been paid her full & final financial dues through cheque. Thus, the contention of the Ld. Counsel

for the petitioner, in this regard, does not hold good.

683

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

12. When, the petitioner appeared in the witness box, as PW-1, she filed her affidavit in

chief examination, wherein, she supported all the facts, as narrated in her claim petition, on all

material particulars, on oath, including that on blank papers, her signatures had been got obtained,

by the management of respondent, at the time of her engagement/appointment, which had been

used for fabricating/preparing her resignation. The amount of Rs. 4557/-, which had been received

by her, pertained to arrears of overtime and earned wages and that she had never entered into any

settlement with the respondent. In the cross-examination, she denied that resignation mark X bears

her thumb impression in red circle A and that she had been paid Rs. 4557/-, by way of full & final

settlement. Cheque, copy of which is Ex. R-1, had been received by her husband and that she had

encashed it. Along-with that cheque, she had not received any letter. She denied that this letter had

been received by her husband, Purshotam Singh. She further made it clear that the cheque and

registered letter had been received by her family members. She denied that the cheque, in question,

had been sent along-with covering letter, copy of which is mark X-3. She further denied to have

resigned, on her own. She expressed her ignorance that when she was working in the factory, there

was workers union. She explained that, at present, there is a workers union in the factory. Against

the respondent/factory, she did not lodge any complaint, in the Police Station, regarding the

fabrication of her resignation. However, in this regard, she had made a complaint, in writing, to the

Labour Officer. The copy of that complaint she had not placed on record. To other authorities,

including president of the union, she did not address the copy of that complaint. She denied that at

present, she has been working in a factory at Baddi. During the period of her service, the

management of the respondent had not fabricated any resignation of other worker.

13. Accordingly to Shri Pradeep Verma (RW-1), the petitioner, who had been working in

their factory, had submitted her resignation on 4.6.2008, on her sweet will, the copy of which is Ex.

R-2. This resignation bears the signatures of Shri Ravinder Kashi Nath, encircled A, who at that

time was the factory manager, which he identifies. Vide letter dated 6.6.2008, Ex. R-3, the

petitioner had been sent her full & final financial dues through post, the postal receipt of which is

Ex. R-4. The detail of the full & final financial dues, is Ex. R-5. Ex. P-1, is the copy of the cheque.

Ex. R-6, is the copy of the detailed statement of the bank which shows that the cheque had been

cleared by ICICI Bank and the amount was credited in the account of the petitioner. He further

stated that the petitioner, on having resigned from service, had come after few days and requested

to take her back in service. For want of vacancy, she could not be reengaged. In the cross-

examination, he stated that on Ex. R-2, within red circle B, the name of Pushpa Devi has been

mentioned and her signatures are below it. He denied to have got obtained her signatures on blank

papers, earlier. He admitted that on the impression of one thumb impression, LTI has been written

and on the other, RTI. He admitted that both the thumb impressions do not tally. He denied that the

thumb impressions are not that of Pushpa Devi (petitioner). Signatures encircled red ‘A’ had not

been signed in his presence. Even, encircled ‘C’ the signatures of Rajesh Dhiman, had not been

signed in his presence. He denied that Ex. R-2 had been fabricated. Letter, Ex. R-3, had been sent

to Pushpa Devi (petitioner), for the reason that she had told that she was to go to her village. Even,

in order to prepare the cheque, sometime was required to be taken. Thus, at the instance of the

petitioner, it had been sent on the next day along-with letter Ex. P-3. He denied that as per Ex. R-5,

the petitioner had been paid unpaid wages for the month of May. He further clarified that even the

money, for the month of June, has also been shown in this document. A salary register is being kept

by them. He denied that the petitioner had not been kept in service, willfully, because she is the

activist of the union. All the documents, they had produced before the Conciliation Officer. He

denied that all the documents had been prepared by them after the conciliation proceedings.

14. The respondent has also examined Shri Aveneesh Shukla (RW-2), who in his affidavit

Ex. RA has stated that the petitioner had submitted her resignation on 4.6.2008, and that she had

been paid full & final financial dues vide cheque. He also stated that there are about hundred

workers in the factory and that there is also a workers union. The resignation of the petitioner had

684

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

been accepted by the respondent. Thus, there was no question of terminating her services. In the

cross-examination, he stated that now they are not ready to reengage the petitioner because she had

resigned. On resignation letter, Ex. R-2, he cannot recognize/identify the signatures of the

petitioner. He denied to have got obtained her signatures on blank paper at the time of her

engagement/appointment. He further denied that the thumb impression of the petitioner had been

got obtained on blank paper. Ex. R-5, does not bear the signatures of the petitioner. He denied that

Ex. R-5, is not full & final settlement of financial claims of the petitioner. He denied that Ex. R-5,

is the document pertaining to minimum wages arrears and salary of the petitioner for the month of

May. Personally, the petitioner had not received the cheque of full & final financial dues. The same

had been sent through registered post with AD. Only, Ex. R-2 had been signed by the petitioner and

not other documents, which have been exhibited. He denied that the petitioner had kept on going to

the factory till 12.6.2008, but she was denied entry by the respondent. They have employed so

many workers. Further, explained that after the resignation of the petitioner, they were employed.

He cannot say as to whether the petitioner is gainfully employed, these days, or not.

15. From the evidence of the petitioner (PW-1), it is revealed that cheque, copy of which is

Ex. R-1, had been received by her husband and that the same she had got encashed. Although, she

has denied to have received any letter along-with cheque but her such version, on this score, cannot

be believed. It has been stated by Pradeep Verma (RW-1), that full & final financial dues had been

sent to the petitioner, along-with letter Ex. R-3, the postal receipt of which is Ex. R-4, through

cheque, copy of which is Ex. R-1. Although, It has been urged on behalf of the petitioner that there

is no material, before this Court, that the alleged resignation of the petitioner had been accepted but

this contention of Ld. Counsel carries no weight particularly when regard is given to Ex. R-2

(resignation), which clearly goes to show that it had been accepted on 5.6.2008, by the respondent-

management. Even, letter Ex. R-3, dated 6.6.2008, which had been sent to the petitioner, through

post, the postal receipt of which is Ex. R-4, along-with cheque, copy of which is Ex. R-1, also goes

to show that her resignation dated 4.6.2008, had been accepted, by the management of the

respondent, on 5.6.2008 and that she was being sent full and final financial dues. Ex. R-6, statement

of transaction, further makes it clear that the amount, which had been sent to the petitioner, through

cheque, copy of which is Ex. -1, had been encashed her on 22.7.2008. Although, the contention of

the petitioner is to this effect that this cheque had been got encashed for the reason that it pertained

to her unpaid wages for the month of May but this fails to convince this Court particularly for the

reason that if the services of the petitioner had been terminated, she would not have accepted the

amount, in question, because according to her, she had been terminated in contravention of the

provisions of the Act. The evidence, on record, further goes to show that there is a workers union in

the factory of the respondent and approximately hundred workers work there. If the resignation of

the petitioner had been forged/fabricated by the management of the respondent, she, in all

probabilities, was to lodge a complaint, in this regard, to the union of the workers. In this regard,

she would have also made complaint to the Labour Inspector and other government authorities,

posted at Baddi. The evidence of the petitioner (PW-1), further goes to show that during the period,

she had remained in service with the respondent, no resignation letter of any worker had been

fabricated/forged by the management of the respondent. Even, she did not examine any other co-

worker in support of her contention that her resignation had been forged/fabricated by the

respondent management. Moreover, if she had not resigned and that her services had been illegally

terminated by the respondent, she was to make mention in her demand notice that the management

of the respondent had fabricated her resignation letter by using her signatures, which had been got

obtained at the time of her engagement/appointment. In these circumstance, there is convincing and

reliable evidence, on record, which goes to show that the services of the petitioner had not been

terminated by the respondent but in fact, she had submitted her resignation, copy of which is Ex.

R-2, which had been accepted by the management of the respondent and also conveyed to the

petitioner as per letter Ex. R-3.

685

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

16. Consequently, for my discussion, foregoing, I hold that the petitioner has failed to

prove that her services had been terminated, by the respondent, in an illegal and unjustified manner.

On the contrary, it duly stands proved, on record, that she, on her own, had resigned from services

and her resignation was accepted by the respondent-management. Thus, my answer to this issue is

accordingly in “no”.

Relief.

As a sequel to my findings on the aforesaid issue, the claim of the petitioner deserves to be

dismissed and accordingly I dismiss it with the result, the reference, which has been made to this

Court, by the appropriate government, stands answered against the petitioner and in favour of

respondent. Let a copy of this award be sent to the appropriate government for publication in

official gazette. File, after completion be consigned to records.

Announced in the open court today this day of 17th Jan., 2014.

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla

Camp at Nalagarh.

_________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA

Ref no. 110 of 2009.

Instituted on 18.12.2009.

Decided on 13.3.2014.

Rajit Kumar S/o Shri Ishwar Dass R/o Village Kot, P.O Jabli, Tehsil Kasdauli, District

Solan, HP.

..Petitioner.

VS.

1. The General Manager M/s Cosmo Ferrities Ltd., Jabli, District Solan, HP.

2. Gulshan Kumar (Contactor) R/o Village Bayla, P.O Nayagram, District Solan, HP.

..Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: None.

For respondent No.1: Shri Rahul Mahajan, Advocate.

For respondent No.2: Ms. Veena Sood, Advocate.

AWARD

The reference for adjudication, is as under:-

''Whether termination of the services of Sh. Rajit Kumar S/o Shri Chattar Singh by (1)

Managing Director M/s Cosmo Ferries Ltd., P.O. Jabli, District Solan, HP., (2) Shri

Gulshan Kumar (Contactor) R/o Village Bayla, P.O Nayagram, District Solan, HP

w.e.f. 17.7.2008, without complying the provisions of Industrial Disputes Act, 1947, is

proper and justified? If not, what relief of back wages, service benefits and amount of

compensation the above aggrieved workman is entitle to?”

686

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

2. The case of the petitioner is that he was initially engaged as helper in the month of

September, 2006, in the pay scale of Rs. 2250/- per month, in the department of Research

Development by the respondents. To the satisfaction of his superiors, he kept on discharging his

duties by completing 240 days in a calendar year w.e.f. September, 2006 to 17.7.2008. He was also

legitimately expecting that his services could not be disturbed by the respondents and he would also

be entitled for the benefits, like minimum wages, w.e.f. 1.1.2008, as per government notification,

adopted by the respondents, as well as over time, EPF benefits etc. Even, after the elapse of month

of June, 2008, the respondents did not adhere to his request. In these circumstances, he raised

demand to the respondents for the enforcement of the Labour Law. Instead of considering his

genuine request, the respondents orally terminated his service w.e.f. 17.7.2008 and that too without

seeking prior permission of the Labour Department. Against his illegal termination, he raised

industrial dispute by serving demand notice but of no avail. It is further alleged that in the

respondent factory there are more than 500 workers out of whom, the respondents have terminated,

about 160 workers, without assigning any reason. Since, there had been more than 100 workers in

the factory of the respondent, it was required to have complied with the provisions of section 25-N

of the Act. It is further said that the respondents have also violated the provisions of section 25-G &

H of the act by engaging fresh persons. Against this back-drop a prayer has been made for his

reinstatement along-with all consequential benefits including back wages.

3. The petition has been contested by respondent no.1, on having raised preliminary

objection including maintainability as there is no relationship of employee and employer between

petitioner and respondent no.1. The claim of the petitioner has also been assailed by asserting that

he was the worker of respondent no.2, who had deputed him to do the job of loading and unloading,

with respondent no.1, under the Contract Labour (Regulation and Abolition) Act, 1970. It is further

maintained that the replying respondent has employed between 200 to 250 workers and in addition

to them, it has also employed labour, through contractor, for loading and unloading work, housing

keeping, gardening etc. It has further been clarified that the petitioner was the workman of Gulshan

Kumar (Labour Contrctor) and for this reason, there had been no relationship of employee and

employer between the parties. Other allegations denied.

4. Respondent no.2, Gulshan Kumar, also contested the claim of the petitioner on having

raised various preliminary objections including maintainability. On merits, it has been asserted that

the replying respondent had applied on 1.2.2006, to General Manager, M/s Cosmo Ferities for

carrying out the work of loading and unloading and he was awarded the work on 6.1.2006.

Thereafter, agreements dated 8.1.2007 and 1.1.2008, had been executed between them. After

31.3.2009, the contract for providing contract labour was not extended. It is further maintained that

the petitioner was being paid wages in terms of notification issued by the government of Himachal

Pradesh. Further, the services of the petitioner had never been terminated by the replying

respondent but, on his own, he left the job without any intimation. Other allegations either denied

or admitted.

5. By filing rejoinder, the petitioner has reaffirmed his own allegations by denying those

of the respondents.

6. Pleadings of the parties gave rise to the following issues which were struck on

11.11.2011.

1. Whether the termination of services of petitioner by the respondents w.e.f.

17.7.2008, is in violation of the provisions of the Industrial Disputes Act, 1947?

..OPP.

2. If issue no.1 is proved in affirmative, to what relief of service benefits, the

petitioner is entitled to?

..OPP.

687

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

3. Whether the petitioner was the employee of respondent no.2 and there is no

employee and employer relationship between the petitioner and respondent no.1?

..OPR-1.

4. Relief:

7. Heard. Material perused.

8. For the reasons to be recorded hereinafter while discussing issues for determination my

findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2

Becomes redundant.

Issue no.3

Yes.

Relief.

Reference answered against the petitioner, per operative part of award.

Reasons for findings

Issue no.1 & 2.

9. Being interlinked, both these issues are taken up together for discussion and decision.

10. It has been specifically alleged by the petitioner that on 17.7.2008, his services had been orally

terminated in violation of the provisions of the Act. Be it stated that as per the contention of the

petitioner, he had been engaged by respondent no.1. On the contrary, the plea, which has been

taken by the respondents is that in fact, the petitioner had been engaged by respondent no.2 and that

as per the contract between respondent no.1 & 2, his services were provided to respondent no.1, for

loading and unloading work. This goes to show that initial, burden was on the petitioner to have

proved that he had been engaged by respondent no.1 and not by respondent no.2 and further that

it was respondent no.1, who had terminated his services on 17.7.2008, in contravention of the

provisions of the Act. Although, several opportunities were given to the petitioner, in order to lead

his evidence, but he failed to do so. Ultimately, on 13.3.2014, when his case was fixed for his

evidence as last opportunity, neither he appeared before this Court nor produced any other

witness/witnesses. In these circumstances, this Court had been left with no other alternative but to

answer the reference on the basis of the material which is available before it. Undoubtedly, the

petitioner had alleged that his services were terminated on 17.7.2008, in contravention of the

provisions of the Act, but in support thereof he has not led any evidence. For his failure to have led

evidence, in support of the issues, the onus of which lie upon him, I have no hesitation in holding

that he has failed to prove that on 17.7.2008, his services had been illegally terminated by the

respondent no.1, as his case is, in contravention of the provisions of the Act. Since, he has failed to

prove issue no.1, issue no.2 becomes redundant.

11. Consequently, for what has been stated and observed above, whereas issue no.1 is

decided in negative, issue no.2, has become redundant.

Issue no. 3

12. When, regard is given to the reply filed by respondent no.1, it is revealed that the

petitioner was the employee of respondent no.2 and that for this reason, there has been no

relationship of employee and employer between the parties. It is true that on this issue, respondent

no.1 has also not led evidence for the reason that the petitioner had failed to lead evidence, in

support of the issues, the onus of which was upon him, but when the stand taken by respondent

no.2, in his reply, is considered, it is highlighted that as per him, the petitioner was his employee

and not that of respondent no.1. When, there has been an admission on the part of respondent no.2,

that the petitioner was his employee/worker, I am of the view that on the basis of such admission, it

688

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

can be said that respondent no.1, succeeds in proving this issue to which my answer is accordingly

in affirmative.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is dismissed

with the result the reference is answered against him and in favour of the respondents. Let a copy of

this award be sent to the appropriate government for publication in official gazette. File, after

completion be consigned to records.

Announced in the open court today this day of 13th March, 2014.

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla

__________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT SHIMLA CAMP AT NAHAN

Ref No. 74 of 2010.

Instituted on: 26.5.2010.

Decided on: 21.3.2014.

Shyam Singh S/o Shri Darshan Singh R/o Village Garih Wala, P.O Dhaulakaun, Tehsil

[paonta Sahib, District Sirmour, HP.

..Petitioner.

Versus

1. Mount Everest Mineral Water Ltd., Dhaulakaun, Tehsil Paonta Sahib, District

Sirmour, HP through it Managing Director, ITTS House 5th Floor, 28-K, Dubhasg Marg, Mumbai.

2. Shri Subhash Walia, Deputy General Manager (works) Mount Everest Mineral Water

Ltd., Dhaulakaun, Tehsil Paonta Sahib, District Sirmour, HP.

..Respondents.

Reference under section 10 of the Industrial Disputes Act,1947.

For petitioner: Shri D.C Khanduja, Advocate.

For respondents: Shri P.K Chaudhory, Advocate.

AWARD.

The reference for adjudication is as under:

“Whether the termination of services of Shri Shyam Singh S/o Shri Darshan lal by the

Factory Manager, M/s Mount Everest Mineral Water Ltd., Village Dhaulakaun,

Tehsil Paonta Sahib, District Sirmour, HP w.e.f. 30.9.2008, on the basis of domestic

enquiry and without affording adequate/sufficient opportunities in the domestic

enquiry as alleged by the workman is proper and justified and whether the

punishment awarded is disproportionate to the offence committed by the workman? If

not, what relief of back wages, service benefits and compensation the above aggrieved

workman is entitled to?”

689

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

2. The case of the petitioner is that he was serving, as workman in Mount Everest Mineral

Water Ltd. Dhaulakaun, Tehsil Paonta Sahib District Sirmour, HP (hereinafter referred as

respondent no.1). On false ground of theft, an enquiry had been initiated against him regarding

some case. The enquiry was conducted not only on false charge of theft but it was also an eye

wash. In fact, no fair opportunity was granted to him. So much so, he was not allowed to lead his

evidence. Being the employee of the respondents, the enquiry officer, was biased against him.

Although, he (petitioner) was allowed to defend himself through a worker but he was neither

competent nor having the knowledge to properly defend him. For this reason, he failed to cross-

examine the witnesses, who had been examined by the respondents, at the time of the enquiry. On

the basis of enquiry, his services were terminated on 3.9.2008 (should have been 30.9.2008). At

that time, he was receiving salary of Rs. 7000/- per month. He had also completed 240 days in the

service of respondents. Thus, his termination had been in violation of section 25-F of the Industrial

Disputes Act, 1947 (hereinafter referred as Act) because neither any compensation was given to

him nor the respondents gave any information to the state government. Against this back-drop, a

prayer has been made to set aside his termination order dated 3.9.2008 (should have been

30.9.2008) and to reinstate him in service along-with all the benefits.

3. The petition has been contested on the plea that on 1.10.2005, the petitioner had been

employed in the services of respondent company as helper and his last drawn wages were Rs.

3800/- per month. In his capacity, as helper, he (petitioner) had been performing the duties of

assisting other employees in the production department, lifting boxes from one place to another etc.

On 15.7.2008, he was on his duty in the 2^nd shift from 2.00 PM to 10.PM. On the completion of his

duties, he left his work place through the main gate and re-entered the premises through rear gate

situated near the agriculture farm. In fact, the said rear gate, is not the regular gate for

ingress/egress of any workmen/general visitors. At that time, S/Shri Geeta Ram and Trilok Chand,

who had been on security duty, on having noticed a torch light near the said rear gate of the factory

got alert and ran towards that side. They had seen the petitioner while lifting one fully filled bag

and in doing so, he had been caught red handed. Since, he had been recognized by the security

personnel, he immediately abandoned the bag near rear gate and ran away. It is alleged that when

the bag was opened by the said security personnel, in the presence of workmen and other staff, the

same was found to have contained mangoes, spanners and keys. Consequent upon the revelation

made by the security personnel, the petitioner had been issued a show cause notice dated 16.7.2008,

whereby he was called upon to submit his written explanation within three days from its receipt. In

his reply, he had explained the circumstances under which the incident had taken place and also

tendered an apology. Since, the reply to show cause notice had not been received by the

respondents, till 25.7.2008, the petitioner was issued charge-sheet dated 25.7.2008, narrating

therein the incident of 15.7.2008, which amounted to a serious misconduct under clause 66 (7) of

the Standing Orders of the company. On the receipt of the same, he was required to file his written

explanation within 48 hours. It is alleged that the charge-sheet had been received and

acknowledged by the petitioner on 28.7.2008. To the same, he submitted his reply dated 30.7.2008.

In para no.2 of his reply, he categorically admitted the act of theft, committed by him by further

explaining that he was required to have sought the permission from the company (respondents) in

order to collect the mangoes, which he failed to take. His clear-cut admission amounted to a serious

misconduct, on his part, regarding the property of the company. Having found his reply to be not

satisfactory, the respondent company, vide its letter dated 30.7.2008, informed him that it had been

decided to hold an enquiry, into the charges, levelled against him in the charge-sheet, already

issued. It is alleged that one Shri H.S. Chowdhary, the works manager of respondent company had

been appointed as an enquiry officer. Before commencing the enquiry, the petitioner had been

explained, in detail, the procedure to be followed in the enquiry, which had been understood by

him. The petitioner had also been given sufficient opportunities to put-forth his case. The

statements and documents which had been filed by him were considered by the enquiry officer and

taken on record. From his letter dated 28.8.2008, it is quite clear that he had been given

690

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

opportunities to file his version, which was taken on record by the enquiry officer. Even, in his said

letter dated 28.8.2008, he had admitted the act of theft. It is further averred that in the enquiry, the

petitioner had been allowed to be represented by his representative. The day to day proceedings had

been recorded in Hindi language and copies thereof were given to the petitioner, which were duly

accepted by him. At the time of enquiry, all the principles of natural justice had been complied with

by affording opportunities to the petitioner. It is further averred that during enquiry, the petitioner

had not raised any grievance, whatsoever, with regard to the conduct of the enquiry officer. The

proceedings of the enquiry had commenced on 5.8.2008 and the same were concluded on

11.9.2008. The enquiry officer, in his report, had held the petitioner to be guilty of all the charges

which were levelled against him vide chargesheet dated 25.7.2008. The enquiry proceedings, report

and findings of the enquiry were sent to the petitioner for his comments vide letter dated 24.9.2008,

which were duly received by him on 25.9.2008. The respondents did not receive any reply from the

petitioner to the enquiry report as well findings of the enquiry officer. Having considered the past

record of the petitioner, as per which, he had been issued warning memo dated 9.6.2007, for

remaining absent un-authorizedly, it was decided to impose the punishment of dismissal and

accordingly, his services were terminated vide letter dated 30.9.2008. It is further averred that on

having followed the due process of law, the services of the petitioner had been terminated. Thus,

the action of the respondent company is proper, legal and valid. It has been specifically denied that

the enquiry officer was biased against the petitioner and that he was not allowed to defend his case

through the worker who was not competent/knowledgeable. Other allegations denied.

4. By filing rejoinder, the petitioner reaffirmed his own allegations by denying those of

the respondents.

5. Pleadings of the parties gave rise to the followings issues which were struck of by this

Court on 19.3.2010.

1. Whether services of Shri Shyam Singh workman have been terminated in an

illegal manner in violation of provisions of Industrial Disputes Act as alleged?

..OPP.

2. If issue No.1 is proved in affirmative, whether petitioner is entitled for back

wages, service benefits and compensation as prayed?

..OPP.

3. Relief.

6. It is to be mentioned that in support of their respective contention, both the parties have

submitted written arguments.

7. Besides having considered the written submissions, made on behalf of the parties, I

have also heard their learned counsel. The material, on record, carefully perused.

8. For the reasons to be recorded hereinafter while discussing the issues for

determination, my findings on the aforesaid issues are as under:-

Issue No.1

No.

Issue No.2

Becomes redundant.

Relief.

Reference answered against the petitioner and in favour of respondent per

operative part of award.

691

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Reasons for findings

Issue No.1

9. The contention of the petitioner is that his services had been terminated in an illegal

manner in violation of the provisions of the Act. When regard is given to the facts, narrated in the

petition, it is revealed that during enquiry proceedings, he had not been afforded opportunity to

properly defend himself. Even, he was not allowed to adduce evidence in his defence. Further, as

the enquiry officer was the employee of the respondent company, for this reason, he was biased

against him. The worker, through whom he was allowed to defend his case, was not competent

enough to cross-examine the witnesses effectively.

10. On the other hand, the contention of the respondents is to this effect that since the

petitioner had been found to have committed a grave misconduct by committing theft of the

mangoes, spanners and keys, belonging to the company, he was charge-sheeted and on enquiry,

which was got conducted in a fair and legal manner, the charges against him were found to have

been established/proved and accordingly, his services were terminated vide letter dated 30.9.2008.

While holding the enquiry, the enquiry officer had followed the principles of natural justice and at

no point of time, the interest of the petitioner had been jeopardized.

11. From the facts, which have come on record, it is clear that before terminating the

services of the petitioner vide letter dated 30.9.2008, an enquiry had been got conducted by the

respondent from one Shri H.S Chaudhory. It is also not a disputed fact that before getting the

enquiry held, the petitioner had been served show cause notice dated 16.7.2008, to which, he had

filed his reply dated 25.7.2008. The petitioner also does not dispute that he had been issued

chargesheet dated 25.7.2008, which he had replied vide reply dated 30.7.2008. From the aforesaid

admitted facts, it is abundantly clear that when it had been reported by the security personnel, to the

respondent company that on 15.7.2008, petitioner had been found with a bag containing mangoes,

spanners and keys, a show cause notice dated 16.7.2008, had been issued to him, which was to be

replied within three days but reply to the same had been filed by the petitioner on 25.7.2008. Since,

his reply had not been received within three days, from the receipt of notice dated 16.7.2008, the

respondent company had issued a chargesheet dated 25.7.2008, against him, to which the petitioner

replied on 30.7.2008. It is also not a disputed fact that when the reply of the petitioner, to the

chargesheet, was not found to be satisfactory, he was informed, vide letter dated 30.7.2008, in this

regard, and further that the respondent company had decided to hold an enquiry into the charges

levelled against him and that Shri H.S Chowdhary, works manager, was to be the enquiry officer to

conduct the enquiry into the charges.

12. Now, this court is required to ascertain as to whether the petitioner had not been

granted opportunities to defend himself and further that the enquiry officer was biased against him.

13. When the petitioner appeared in the witness box as PW-1, he filed his chief

examination by way of affidavit Ex. P-1, wherein, he supported all the facts as narrated in the

petition and further that no fair opportunity had been provided to him during enquiry proceedings.

The enquiry officer had got obtained his signatures on the ordersheets, under pressure. It has also

been stated that when he realized that the enquiry officer was holding the enquiry in biased manner,

he made a representation to respondent to appoint some other impartial enquiry officer which

request was ignored and not looked into. It has also been stated that on 15.7.2008, at about 10.00

PM, he had not been found to have committed the theft of mangoes, spanners and keys. In fact, a

false case was manipulated against him, in order to remove him from the job. It is also stated that

he had collected the mangoes, which had fallen on the ground, considering them to be waste

material. Since, he had forgotten to take the bag, containing mangoes, from the main gate, he went

to the rear gate to collect the same but Shri Trilok Singh did not allow him to carry the bag. He had

692

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

not put the keys and spanners in the bag. He does not know how the keys and spanners were found

in the bag. He had not committed any theft of keys and spanners. In the cross-examination, he

admitted to have received chargesheet dated 25.7.2008, to which the reply was filed. He had also

received notice regarding the holding of domestic enquiry, from the company, as per which, Shri

H.S Chaudhory, had been appointed as an enquiry officer. He used to sign the proceedings before

the enquiry officer. The enquiry officer had also recorded his statement. He had produced Ram Pal

from quality department in his defence. Said Ram Pal is his real brother. He had been afforded

opportunity to cross-examine the witnesses of the management. Orally, he had raised objection

before the enquiry officer. He had also made a representation to the company that enquiry officer

should be changed as he was not acting fairly. The copy of said representation is Ex. P-1, which

was forwarded on 19.9.2008, through post, the postal receipt of which is Ex. P-2, which is dated

22.9.2008. He admitted that on the completion of the enquiry, he had been issued show cause

notice, which he did not reply. He had received the termination letter on 30.9.2008. Cheque in the

sum of Rs. 7,961/- had been received by him on 15.10.2008, which was regarding the payment of

dues. He denied not to have made any representation to the company that the enquiry officer was

biased.

14. From the evidence of the petitioner, it is quite clear that he had participated in the

enquiry and cross-examined the witnesses of the management. From his evidence, it is further

borne out that the enquiry officer had also been giving to him the copies of enquiry

proceedings/order-sheets. His evidence further makes it clear that after the completion of enquiry,

he had been issued show cause notice. From his such evidence, it is abundantly clear that through

show cause notice, he had been sent the enquiry report, as per which, he was found guilty for the

charges levelled against him. The contention of the petitioner is to this effect that he was falsely

implicated in a case of theft of mangoes, spanners and keys, for the reason that the company

wanted to remove him from job. From the evidence of the petitioner, it is abundantly clear that he

had been found, on the rear gate of the company, while in possession of a bag containing mangoes.

He has denied that in the bag, he had kept spanners and keys. Here, it is to be noted that if the

petitioner had not committed theft of the mangoes, spanners and keys, belonging to the company,

there was no occasion for him to have tried to take the bag containing mangoes and alleged stolen

articles (spanners and keys), from the rear gate.

15. In support of his case that there had been no spanners and keys in the bag containing

mangoes, the petitioner has examined PW-2 Shri Trilok chand. According to this witness, on

15.7.2008, at about 10.00PM, he was on duty, as security guard, and had checked the bag of the

petitioner which was found to have contained mangoes. At that time, he had personally checked the

bag and there was no key or panna, in the same. To shyam Singh (petitioner) he had told to take the

bag in the morning. One Shri Geeta Ram, who was also security guard, had also come on the spot

and checked the bag which contained mangoes.

16. From the evidence of PW-2, it is revealed that at about 10.00PM, on 15.7.2008, the

petitioner had been found while in possession of a bag containing mangoes. He has also stated that

at that time Shri Geeta Ram, security guard, had also come. According to him, in the bag, there was

no key or panna.

17. The respondents have examined Shri Subhash Walia, RW-1, who tendered in chief

examination his affidavit. He further stated that Ex. RA/1, is the show cause notice dated

16.7.2008, Ex. RA/2, reply dated 25.7.2008, to show cause notice, Ex. RA/3 chargesheet dated

26.7.2008, Ex. RA/4, letter dated 30.7.2008, Ex. RA/5, letter of company dated 30.7.2008, Ex.

RA/6, enquiry proceedings and RA/7, dismissal order dated 30.9.2008.

693

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

18. Shri Hari Singh (RW-2), has filed his affidavit in chief examination, in which he has

stated that to the chargesheet dated 5.7.2008, he had conducted domestic enquiry in his capacity as

enquiry officer. The enquiry had been conducted by following the principles of natural justice.

During enquiry, the petitioner/worker had not filed any representation/letter for his removal. During

enquiry, he had recorded the statement of witnesses. On having considered the same, it had been

found that the allegations levelled against the petitioner/worker vide chargesheet dated 25.7.2008,

had been duly proved. The copy of the enquiry report is Ex. RA. Ex. RB, is the copy of enquiry

proceedings. After enquiry, he had sealed a packet containing two keys and one bag. In the

crossexamination, he denied that when the bag, being carried by the petitioner, had been checked

by Trilok Chand, it was not found to have contained any panna/key. He denied that under the

influence of the management, without having afforded opportunity to the petitioner, he gave a

wrong report against him.

19. Shri Yogi Ram (also RW-2), in his affidavit Ex. RW-2/A, has stated that on 15.7.2008,

he was on night duty. At about 10.00 PM, on the rear gate of the factory, security personnel

Rajinder Singh and Trilok Chand, had come to him and told that they had caught Shri Shyam Singh

(petitioner), while being in possession of a bag on the rear gate of the factory. At that time, Shri

Shyam Singh (petitioner) had gone. The security personnel had asked him to keep the bag in the

boiler room in the supervision of some guard so that nobody could have tampered with the same. In

the morning, at about 5.00 AM, in the presence of the staff members and other workers, the bag

was checked and it was found to have contained mangoes and two keys. Thereafter, the bag was

closed. At the time of domestic enquiry, he had appeared before the enquiry officer. In the cross-

examination, he stated that affidavit Ex. RW-2/A, had been written at his instance. He denied that

in order to remove the petitioner from service, the management had concocted a false story.

20. By examining Shri Yogi Ram (RW-3), the respondents have proved before this Court

that in the bag, which had been recovered from the petitioner, two keys had also been found along-

with mangoes. Here, I may mention that, on the record, the respondent has also brought the copy of

enquiry report Ex. RA/6 and also the proceedings conducted by the enquiry officer. The perusal of

the proceedings goes to show that during enquiry, statements of Geeta Ram, Rajinder Singh, Malkit

Singh, Manoj Kumar, Rajinder Yadav, Yogi Ram and Ram Singh, had been recorded. All the

witnesses had stated in one voice that from the bag, which had been opened in their presence, two

keys/spanners had been recovered along-with mangoes. Their statements further go to show that

they had been subjected the cross-examination by the petitioner. In his enquiry report Ex. RA/6, the

enquiry officer had found all the charges levelled against the petitioner to have been proved. It has

been admitted by the petitioner that the respondent had sent him the copy of the enquiry report

along-with show cause notice, which he had not replied. Although, the contention of the petitioner

is to this effect that he had made a representation to the respondent company for changing the

enquiry officer as he was biased against him but when, material on record, is considered, it does not

appear to this Court that he (enquiry officer) had acted in a biased manner. From the statement of

the witnesses, which were recorded by him (enquiry officer), it has been proved that the bag which

had been recovered from the petitioner was also having spanners and keys besides mangoes. I have

also observed that the conduct of the petitioner to have been found with a bag on the rear gate of

the factory, suggests that he was involved in the commission of theft of the properties belonging to

the respondent company, may it be mangoes or spanners & keys. Since, he had been afforded an

opportunity to defend himself through a worker and further that he had cross-examined the

witnesses, examined by the management during the enquiry, I am of the view that the enquiry

officer had followed the principles of natural justice. The services of the petitioner have been

terminated, on the basis of the enquiry which was conducted against him, as per letter dated

30.9.2008. In these circumstances, it cannot be said that his services have been terminated in

violation of the provisions of section 25-F of the Act, as alleged by the petitioner.

694

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

21. Consequently, for what has been stated and observed above, I without hesitation hold

that the petitioner does not succeed in proving that his services had been terminated, in an illegal

manner, in violation of the provision of the Act. Accordingly, my answer to this issue is in “No”.

Issue no. 2

22. Since, issue no.1, has not been proved, this issue becomes redundant.

Relief.

As a sequel to my above discussion and findings on issue No. 1 & 2, the claim petition

deserves to be dismissed and accordingly it is dismissed and in terms of the same, the reference

stands answered accordingly. Let a copy of this award be sent to the appropriate government for

publication in the official gazette. File, after completion, be consigned to records.

Announced in the open court today on this 21st March 2014.

A.S JASWAL,

Presiding Judge,

Labour court, Shimla

Camp at Nahan.

_________

App.43/2013

15.3.2014

Sh Surinder Singh V/s Sh Bali Ram Panday & others

15.3.2014:-

Present:-

Sh A.K.Sharma , AR for the petitioner.

None for the respondent.

In view of the statement of Shri A.K.Sharma AR for petitioner, already a compromise has

been effected between the parties , Thus , this petition stands disposed of as having been

compromised. Let a copy of this order be sent to the appropriate government for publication in the

official gazette. File , after completion, be consigned to records.

Announced:-

15.3.2014

Sd/-

Presiding judge

Labour Court, Shimla.

695

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM- LABOUR COURT, SHIMLA

Ref no. 112 0f 2009.

Instituted on 26.12.2009.

Decided on. 1.4.2014.

Deep Ram S/o Shri Khiru Ram R/o Village Mandap, P.O Karyali, Tehsil Sunni, District

Shimla, HP.

..Petitioner.

VS.

1. The Executive Engineer HPPWD Division, Kumarsain District Shimla, HP.

2. The Assistant Engineer, HPPWD, Sub Division Jalog, Tehsil Sunni, District Shimla,

HP.

..Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri J.R Sharma, Advocate.

For respondents: Shri Surinder Negi, Dy. DA.

AWARD

The reference for adjudication is as under:

“Whether the termination of services of Shri Deep Ram S/o Shri Khiru Ram by Executive

Engineer, HPPWD Division Kumarsain District Shimla HP w.e.f. August, 2005 without

complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If

not, what relief of back wages, seniority, service benefits and amount of compensation the

above aggrieved workman is entitled to?”

2. The case of the petitioner is that on 1.9.1994, he was initially appointed as daily waged

beldar and remained posted at various stations/places, under the respondents. He continued to work

till August, 2005, after which, his services were terminated, without assigning any reason. It is

further stated that he had completed 240 days in twelve calendar months preceding the date of his

oral illegal termination. Although, he had made several request for his reengagement but of no

avail. On the contrary, the respondents retained many juniors to him and even engaged fresh hands

namely Khem Raj, Kamal Parkash, Khem Chand, Bhopal Singh, Jeet Ram, Tej Ram, Reva Dass,

Dalip Kumar and Tara Chand. Since, his services had been terminated in violation of the provisions

of the Act, he is required to be reinstated along-with back wages, continuity of service etc.

3. The claim of the petitioner has been contested, on having raised various preliminary

objections, qua maintainability. On merits, it has been asserted that the petitioner had been enrolled

as daily waged labourer, in Jalog Sub Division, on muster roll for the month of Jan., 1995. He had

worked till July, 2005, when he left the job voluntarily. Neither, he had been removed from service,

orally, nor written termination order was served upon him. In the year 1995, he had worked for 231

days and completed 240days only in the years, 1999, 2000, 2002 and 2004. In the twelve calendar

months preceding his abandonment, he did not complete 240 days. Although, he had been asked,

many times, orally, to remain regular in his duties but he failed to pay any heed. After having

remained, habitually irregular, to attend his work, he lastly left the same during July, 2005. Thus, it

696

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

cannot be said that his services had been terminated in violation of the provisions of section 25-F of

the Act. Even, in the muster roll for the months of August, September and October, 2005, less

number of beldars had joined the work than the sanctioned strength of each muster roll. This clearly

goes to show that the petitioner had not joined the work, which was available, despite having been

intimated through his colleagues. Even, his being irregular, in attending the work, is also apparent

from the detail of mandays for the period commencing from Jan., 1995 to July, 2005. It has been

denied that the petitioner had requested either in writing or orally to the respondent for his

reengagement. As far as junior workers, as mentioned by the petitioner, are concerned, they were

retained by the department in compliance to the order of Hon’ble Court. Other allegations denied.

Rejoinder not filed. Pleadings of the parties gave rise to the following issues which

were struck on 7.10.2010.

1. Whether the services of the petitioner w.e.f August, 2005 were terminated in an

illegal and improper manner in contravention of the provisions of the Industrial

Disputes Act, 1947 as alleged?

..OPP.

2. If issue no.1 is proved, to what relief of service benefits, the petitioner is entitled

to?

..OPP.

3. Whether the claim of the petitioner is not maintainable as alleged?

..OPR.

4. Relief.

5. I have heard the learned counsel for the parties and have also gone through the record

of the case carefully.

6. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no. 1

Yes.

Issue no. 2

Entitled to reinstatement in service forth-with with seniority and continuity

but without back wages.

Issue no. 3

No.

Relief.

Reference answered in favour of the petitioner and against the respondents,

per operative part of award.

Reasons for findings

Issue no.1& 2.

7. Whereas the contention of the petitioner is that his services had been illegally

terminated by the respondents, the defence version is to this effect that he had abandoned the job in

the month of August, 2005. The petitioner has also specifically averred that in the twelve calendar

months prior to his alleged termination, he had completed 240 days and for this reason, his services

had been terminated in violation of the provisions of section 25-F of the Act. His another

contention is that persons junior to him are still in job and that the department had also engaged

fresh hands after his alleged termination.

8. In his affidavit, the petitioner, while appearing in the witness box, as PW-1, has

supported all the material facts as stated in the claim petition including that initially he had been

appointed on daily wages basis on 1.9.1994 and worked till August, 2005, when his services were

697

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

terminated, orally. He further stated that his juniors have been retained in job as per their names

mentioned in the affidavit. Ex. P-1, is the detail of daily paid beldars. In the cross-examination, he

admitted that he had been engaged in the month of Jan., 1995 on muster roll and worked up to July,

2005. He denied to have left the job voluntarily. At the time of dis-engaging his services, the

department had not givenanything in writing. He denied to have abandoned the job, on his own. He

further denied that the muster roll for the months of August, September, and August, 2005, had

been issued and that despite the same, he did not report for work. There is further denial that he had

been told regarding the availability of work. He further denied that despite having been intimated,

regarding the availability of work, through colleague, he did not join the same. He admitted that the

persons, mentioned in para no.2 of his affidavit, were retained after the orders of the Court. In the

month of July, 2005, he had worked only for 2 days. He denied that even he had told the

department, verbally, that he was not interested to do the work as he was ill.

9. Shri Yog Raj Sharm (RW-1) has stated from the summoned record that in the month of

Jan., 1995, the petitioner had been engaged as daily wager at Jalog Sub Division and that till July,

2005, he worked as such. Thereafter, on his own, he had left the job. Ex. RW-1/A is the muster roll

for the month of July, 2005, which is correct as per the original brought by him. Neither the

department had disengaged the petitioner, orally, nor through writing. In fact, he had left the job, on

his own. Ex. RW-1/B, is the copy of the mandays chart of the petitioner. In the year, 2005, the

petitioner had worked only for 111 days. Even, when the petitioner had left the job, his name was

not struck off from the muster roll for the months of August, September and October, 2005. In the

muster roll for the period 1.8.2005 to 31.8.2005, the strength of the beldars has been shown to be

12 but against the same, only 10 did the beldari job. This muster roll is Ex. RW-1/C. In the muster

roll Ex. RW-1/D, the strength of the beldars has been shown to 11 but against the same 9 beldars

reported to work. Similarly, in muster roll Ex. RW-1/E, against sanctioned strength, only 9 workers

had performed the job. Despite having been intimated through colleague, the petitioner did not

come to join the job. In the cross-examination, he denied that the petitioner had been working

since, 1.9.1994 and that before leaving the job, he had worked for 240 days. He admitted that the

department had neither issued any notice to the petitioner nor paid compensation. He denied that

the petitioner had not left the job. He admitted that the department had engaged beldars after the

petitioner was allegedly disengaged from job.

10. Ex. RW-1/B, is the mandays chart of the petitioner. Its perusal goes to show that in the

year, 2005, the petitioner had only worked for 111 days. In the months of December, November,

October and September, 2004, the petitioner had worked for 20, 12, 22 and 25 days. From this

mandays chart, it is abundantly clear that the petitioner had not worked for 240 days within a period

of twelve calendar months preceding the date of his alleged termination of service. There is

nothing, on record, which could go to show that he had completed 240 days in twelve calendar

months preceding his termination. It has been held in 2009 (120) FLR 1007 an Civil Appeal no.

4468 of 2005 of Hon’ble Supreme Court incase titled as Relip Nagarpalika Vs. Babuji Gabhaji

Thakore and others that:

“The burden of proof lies on the workman to show that he had worked continuously for

240 days for the preceding one year and it is for the workman to adduce evidence apart

from examining himself to prove the factum of being in employment of the employer.”

Since, the petitioner has failed to prove that he had worked continuously for 240 days in

the preceding one year from the date of his termination, his alleged termination cannot be said to be

in contravention of the provisions of section 25-F of the Act.

11. In his petition, the petitioner has alleged that persons junior to him, as per their names

given in para no.5, are still working with the department. In his affidavit, which he filed in support

of his evidence, he has mentioned the names of the persons, junior to him, who have been retained

698

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

by the department. He has also filed detail of daily paid beldars, which is Ex. P-1. From the

evidence, on record, it is highlighted that the petitioner had been engaged as daily waged beldar in

the month of Jan., 2005, as is also admitted by him (petitioner) when he appeared in the witness

box as PW-1. Although, the contention of the respondent is to this effect that the petitioner had left

the job on his own and did not return to join the same despite having been called through colleague

but in this regard, there is no reliable evidence led by the respondent. Even, it has not been brought,

on record, as to who was the beldar through whom the department had intimated the petitioner to

join his duties. It is to be mentioned that in writing, the petitioner had not been intimated by the

respondent to join his duties. From the affidavit, which has been filed by the petitioner, in support

of his evidence, it is revealed that S/Shri Khem Raj, Kamal Parkash, Khem Chand, Bhopal Singh,

Jeet Ram and Tej Ram were appointed by the department on 1.1.2000. Reva Dass was appointed on

1.7.2009, Dalip Kumar on 1.5.2009 and Tara Chand on 1.2.2008. It has also been admitted by Shri

Yog Raj (RW-1) that when the petitioner, allegedly left the job, the department had engaged other

beldars. He further clarified that on the order of the Court, the beldars had been engaged. In this

way, from the evidence which has come on record, it is quite clear that the persons, junior to the

petitioner, have been retained by the respondents. Since, the respondents have failed to prove, on

record, that despite having been intimated to join the job, the petitioner had failed to resume his

duties, it can be said that the petitioner has been able to prove that there has been violation of the

provisions of section 25-G & H of the Act. Since, the petitioner has succeeded in proving that his

juniors have been retained by the respondents, I am of the firm view that there has been non

compliance of the provisions of sections 25G & H of the Act, as per which, the services of the

juniors were required to be disengaged than that of petitioner or in case some new persons were to

be engaged, the petitioner was required to be given preference. It has been held by our own

Hon’ble High Court, incase titled as State of HP & Others V/s Bhatag Ram & Anr. as reported in

latest HLJ 2007 (HP) 903. that :-

“Continuing of 240 days is not necessary in 12 calendar months. It is not necessary to

workman to complete 240 days during 12 months for taking the benefits of section 25-G

& 25-H of the Act.”

12. For my above discussion and law laid down by the Hon’ble High Court (supra), I have

no hesitation in holding that the services of the petitioner had been terminated/disengaged w.e.f.

August, 2005, illegally and in an unjustified manner and that too without complying with the

provisions of the Act. Accordingly, my answer to this issue is in “Yes”.

Issue no. 2

13. Learned counsel for the petitioner has urged that the petitioner should be reinstated

with all the consequential benefits including back wages. In number of judgments of Hon’ble Apex

Court, it has been held that in the event of reinstatement of a worker, the grant of back wages is not

automatic. The Hon’ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs.

Prabhakant Shukla has ruled that “full back wages cannot be granted mechanically, upon a

order of termination be declared illegal. It is further held that reinstatement must not be

accompanied by payment of full back wages even for the period when the workman remained out

of service and contributed little or nothing to the Industry”.

14. Consequently, for what has been stated and observed above, the petitioner is held

entitled to be reinstated in service with continuity and seniority but without back wages. Thus, my

answer to this issue is in “Yes”.

Issue no. 3

15. For the respondents, it has been urged that the claim of the petitioner is not

maintainable because he has failed to prove that in the twelve calendar months preceding his

699

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

termination, he had completed 240days and further that, on his own, he had abandoned the job.

While discussing the evidence, I have already arrived at this conclusion that the respondents have

not succeeded in proving that the petitioner had abandoned his job. Although, it could not be

proved by the petitioner that he had completed 240 days in the twelve calendar months preceding

his termination but, on the record, it has been proved that the department had either retained juniors

to him or engaged fresh hands, after his disengagement. In this way, when the petitioner succeeds

in proving that there has been violation of section 25-G & H of the Act, his claim cannot be said to

be not maintainable. Thus, by holding his claim to be maintainable, my answer to this issue is in

“No”.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and

the petitioner is ordered to be reinstated in service forth-with with seniority and continuity but

without back wages. Consequently, the reference stands answered in favour of petitioner and

against the respondents. Let a copy of this award be sent to the appropriate government for

publication in official gazette. File, after completion be consigned to records.

Announced in the open court today on this 1st day of April, 2014.

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla

__________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA

Ref. No. 114 of 2009.

Instituted on 2.9.2009.

Decided on 10.4.2014.

Tunnu Lal Yadav S/o Shri Ram Avtar yadav R/o Vilage & P.O Khera, Tehsil Nalagarh,

Dsitrict Solan, HP.

..Petitioner.

VERSUS

The Factory Manager M/s Sidharatha Super Spinning Mills, Khera, tehsil Nalagarh, Dsitrict

Solan, HP.

..Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri Sandeep Dadwal, Advocate

For respondent: Shri Rajeev Sharma, Advocate.

AWARD

The reference for adjudication is as under:

“Whether the termination of the services of Shri Tunnu Lal Yadav S/o Shri Ram

Avtar Yadav by Factory Manager M/s Sidharatha Super Spinning Mills, Khera,

700

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Tehsil Nalagarh, District Solan, HP w.e.f. 6.3.2006, on the basis of domestic enquiry

and without affording adequate/sufficient opportunities in the domestic enquiry

without complying the provisions of the Industrial Disputes Act, 1947 as alleged by the

workman is proper and justified? If not, what relief of service benefits and amount of

compensation the above aggrieved workman is entitled to?”

2. The case of the petitioner is that in the year, 1987, he was appointed as Karigar by the

respondent company. In the year, 1993, the Trade Union, namely AITUC, to which the petitioner

was one of the members, had raised some demands in the interest of workers, which were legal and

genuine. On account of the adamant attitude of the respondent company, the demands could not be

resolved. Thereafter, when the matter was taken to this Court, it was compromised, somewhere, in

the year, 2003-2004. It is alleged that after the compromise, the respondent company started

harassing all the workmen, who were party to the compromise. Out of 58 workers, 50 were

removed from job on the basis of frivolous allegations and fake enquires. On 10.10.2005, he

(petitioner) was served with chargesheet -cum- suspension letter wherein it was alleged that on

9.10.2005, he was found sleeping, while on duty, on machine no.2, at about 2.50 AM. At that time,

he had also misbehaved with Shri Shambhu Jobber. In order to explain his position, he was given

48 hours from the date of receiving the chargesheet. On 13.10.2005, he replied the chargesheet,

which was found to be unsatisfactory. Upon this, the respondent company decided to conduct

domestic enquiry against him through Shri Sanjeev Sharma, Advocate. Information regarding the

domestic enquiry was served upon him vide communication dated 22.10.2005, by the enquiry

officer. Through letter dated 22.10.2005, he had also been asked to appear for the enquiry, on

26.10.2005, in the security room, at about 2.00PM. On 4.11.2005, the petitioner brought one Shri

Som Dutt, as his authorized representative but he was not allowed to engage him. Even, thereafter,

said Som Dutt was never allowed by the enquiry officer during the proceedings of enquiry. He

(petitioner) had also not been supplied with the day to day proceedings. Thus, he was not provided

any opportunity of being heard. It is further alleged that the enquiry officer had closed the enquiry

without having afforded an opportunity to the petitioner. Thereupon, he (petitioner) raised a

demand notice dated 10.7.2006, which was replied by the respondent company. Since, the matter

could not be settled, a reference was made to this Court by the appropriate government. It is further

alleged that the petitioner had been illegally suspended by the respondent. Against this back-drop, a

prayer has been made to direct the respondent to reengage him from 10.5.2005, with all the

consequential benefits.

3. The petition has been contested, on having raised preliminary objections including

maintainability. On merits, it has been asserted that a fair enquiry had been conducted against the

petitioner as per the certified standing orders of the respondent. While conducting he enquiry, the

enquiry officer had complied with the principles of natural justice by affording full opportunity to

the petitioner. It is further alleged that the petitioner had refused to sign the proceedings and openly

proclaimed that he would not allow these enquiry proceedings to continue. In this way, while

indulging in grave misconduct, he had left the enquiry. It has been denied that the enquiry officer

had not allowed Shri Som Dutt to defend the petitioner. In fact, said Som Dutt, had never appeared

in the enquiry proceedings, as defene representative of the petitioner. Other allegations denied.

4. On the pleadings of the parties, the issues which had been framed on 7.7.2010, were

recast on 15.12.2010, as under:

1. Whether the services of the petitioner have been terminated by the respondent

management in an illegal manner without complying the provisions under

Industrial Disputes Act, 1947, as alleged?

..OPP.

2. Whether this petition is not maintainable as alleged?

..OPR.

3. Relief.

701

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

5. Before, I proceed further, be it stated that on having been afforded several

opportunities, the petitioner failed to lead his evidence and consequently, his evidence was closed

by the order of this Court dated 10.4.2014. Since, the petitioner did not lead evidence, the

respondent also did not lead evidence.

6. Besides having gone through the material on record, I have also heard the learned

counsel for the parties.

7. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as

under:

Issue no. 1

No.

Issue no. 2

No.

Relief

Reference answered against the petitioner and in favour of respondent per

operative part of award.

8. The contention of the petitioner is to this effect that his services had been terminated,

in an illegal manner, without complying with the provisions of the Act. It has been alleged by the

petitioner that at the time of enquiry, he was not allowed to be defended by one Shri Som Dutt and

also not afforded opportunity to lead his defence. On the other hand, the defence version is that the

petitioner had never produced said Som Dutt at the time of enquiry and further that on having

followed the principles of natural justice, the enquiry officer had conducted the enquiry against the

petitioner.

9. In support of his contention that the petitioner had not been afforded opportunity to

defend himself, during the enquiry proceedings, and further that the enquiry officer had not

complied with the provisions of natural justice, no substantial evidence has been led by the

petitioner. Since, it was upon the petitioner to prove that at the time of enquiry, he was not afforded

oportuity to defend himself and further that Shri Som Dutt, to whom, he wanted to get engaged as

his defence representative, was not allowed by the enquiry officer, I have been left with no other

alternative but to hold that for want of evidence, he (petitioner) fails to prove this aspect of the

matter. For his failure to lead evidence, in support of this issue, my answerer to it is in “No”.

Issue no.2.

10. Consequent upon the reference, which was made to this Court, by the appropriate

government, the petitioner filed statement of claim. It is not understandable as to why this petition

is not maintainable. Moreover, in support of this issue, no evidence has been led by the respondent.

Resultantly, I hold this petition to be maintainable. Accordingly, my answer to this issue is in “No”.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner fails and it is

dismissed with the result, the reference is answered in favour of the respondent an against the

petitioner. Let a copy of this award be sent to the appropriate government for publication in the

official gazette. File, after completion, be consigned to records.

Announced in the open court today this day of 10th April, 2014.

A. S JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

702

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

In the Court of Sub-Divisional Magistrate, Kalpa at Reckong-Peo,

District Kinnaur (H. P.)

Case No. : 13/2014

Date of Institution : 15-5-2014

In the matter of :

Shri Vidya Pal s/o Shri Tulsi Dass, resident of Village Kalpa, P. O. Kalpa, Tehsil and,

District Kinnaur, Himachal Pradesh

. . Applicant.

Versus

General Public

Application under Section 13(3) of Birth and Death Registration Act, 1969.

Notice for publication in the Rajpatra of Himachal Pradesh.

The above named applicant has preferred an application supported by an affidavit in this

Court under Section 13(3) of the Birth and Death Registration Act, 1969 stating therein that his son

was born on 8-9-1999 but due to ignorance he could not get the birth of his son registered/recorded

in the records of Gram Panchayat Kalpa and now he intends to get the same registered/reorded in

the records of Gram Panchayat Kalpa. Public notice inviting objections of the general public

regarding entry of birth in the records of Gram Panchayat Kalpa on 31-5-2014, till the stipulated

date i. e. 31-5-2014. Therefore notice is hereby issued to the general public through this publication

that if anybody has any objection for the registration of birth of said son in Gram Panchayat Kalpa

he/she may prefer his/her written or verbal objection before the undersigned within a period of one

month i. e. before 31-5-2014 failing which it will be presumed that nobody has any objection for

registration of birth in Gram Panchayat Kalpa and order under the Act ibid will be issued to the

Local Registrar of Gram Panchayat.

Issued under my signature and seal of the Court today on 15^th day of May, 2014 .

Seal.

Sd/-

Sub-Divisional Magistrate,

Kalpa at Reckong-Peo, District Kinnaur (H. P.).

_______

In the Court of Sub-Divisional Magistrate, Kalpa at Reckong-Peo,

District Kinnaur (H. P.)

Case No. : 14/2014

Date of Institution : 15-5-2014

In the matter of :

Shri Gulab Sukh s/o Shri Sukh Bar, resident of Village Barang, Tehsil Kalpa, District

Kinnaur, Himachal Pradesh

. . Applicant.

Versus

General Public

703

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Application under Section 13(3) of Birth and Death Registration Act, 1969.

The above named applicant has prefered an application supported by an affidavit in this

Court under Section 13(3) of the Birth and Death Registration Act, 1969 stating therein that his

father late Shri Sukh Bar s/o Shri Jitmua was expired on 3-3-2014 but due to ignorance he could

not get the death of his father registered/recorded in the records of Gram Panchayat Barang and

now he intends to get the same registered/reorded in the records of Gram Panchayat Barang. Public

notice inviting objections of the general Public regarding entry of death in the records of Gram

Panchayat Barang on 3-3-2014, till the stipulated date i. e. 31-5-2014. Therefore notice is hereby

issued to the general public through this publication that if anybody has any objection for the

registration of death of said Sukh Bar in Gram Panchayat Barang he/she may prefer his/her written

or verbal objection before the undersigned within a period of one month i. e. before 31-5-2014

failing which it will be presumed that nobody has any objection for registration of death in Gram

Panchayat Barang and order under the Act ibid will be issued to the Local Registrar of Gram

Panchayat.

Issued under my signature and seal of the Court today on 15^th day of May, 2014 .

Seal.

Sd/-

Sub-Divisional Magistrate,

Kalpa at Reckong-Peo, District Kinnaur (H. P.).

_______

In the Court of Sub-Divisional Magistrate, Kalpa at Reckong-Peo,

District Kinnaur (H. P.)

Case No. : 15/2014

Date of Institution : 15-5-2014

In the matter of :

Shri Rakesh Roshan s/o Shri Prakash Chand kapoor, resident of Village Khawangi, Tehsil

Kalpa, District Kinnaur, Himachal Pradesh

. . Applicant.

Versus

General public

Application under section 13(3) of Birth and Death Registration Act, 1969.

The above named applicant has preferred an application supported by an affidavit in this

Court under Section 13(3) of the Birth and Death Registration Act, 1969 stating therein that his son

named Jai Yash Kapoor s/o Shri Rakesh Roshan was born on 11-12-2011 but due to ignorance he

could not get the birth of his son registered/recorded in the records of Gram Panchayat Khawangi

and now he intends to get the same registered/recorded in the records of Gram Panchayat

Khawangi. Public notice inviting objections of the general public regarding entry of birth in the

records of Gram Panchayat Khawangi on 11-12-2011, till the stipulated dated i. e. 31-5-2014.

Therefore notice is hereby issued to the general public through this publication that if anybody has

any objection for the registration of birth of said son in Gram Panchayat Khawangi he/she may

prefer his/her written or verbal objection before the undersigned within a period of one month i. e.

before 31-5-2014 failing which it will be presumed that nobody has any objection for registration

704

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

of birth in Gram Panchayat Khawangi and order under the Act ibid will be issued to the Local

Registrar of Gram Panchayat.

Issued under my signature and seal of the Court today on 15^th day of May, 2014 .

Seal.

Sd/-

Sub-Divisional Magistrate,

Kalpa at Reckong-Peo, District Kinnaur (H. P.).

_______

In the Court of Shri Gian Sagar Negi, Sub-Divisional Magistrate, Shimla (R),

District Shimla, Himachal Pradesh

Shri Tenzin Dhonyo s/o Shri Tsering Lhundup, r/o House No. 12, Near Dhingu Mandir,

Tibetan Coloney Sanjauli, Shimla, Himachal Pradesh.

Versus

General Public

. . Respondent.

Whereas Shri Tenzin Dhonyo s/o Shri Tsering Lhundup, r/o House No. 12, Near Dhingu

Mandir, Tibetan Coloney Sanjauli, Shimla, Himachal Pradesh has filed an application alongwith

affidavit in the court of undersigned under section 13 of the Birth and Death Registration Act, 1969

to enter his date of birth of Shri Tenzin Dhonyo s/o Shri Tsering Lhundup, r/o House No. 12,

Near Dhingu Mandir, Tibetan Coloney Sanjauli, Shimla, Himachal Pradesh in the record of Birth

and Death in the office of MC Shimla, Shimla (R) B&D has issued No. MCS/CHO13-494, Dated

30-4-2014 as following :

Sl.

No.

Name of the family members

Relation

Date of Birth

Tenzin Dhonyo

s/o Shri Tsering Lhundup

16-5-1977

Hence this proclamation is issued to the general public if they have any objection/claim

regarding entry of date of birth of above in the record of MC Shimla, may file their

claim/objections on or before one month of publication of this notice in Govt. Gazette in this court,

failing which necessary orders will be passed.

Issued today 8-5-2014 under my signature and seal of the court.

Seal.

GIAN SAGAR NEGI,

Sub-Divisional Magistrate,

Shimla(R), District Shimla, Himachal Pradesh.

__________

In the Court of Shri Gian Sagar Negi, Sub-Divisional Magistrate, Shimla (R),

District Shimla, Himachal Pradesh

Miss Tashi Lhamo d/o Late Shri Wangdu, r/o Tibetan Coloney Below Old Bus Stand,

Shimla-1, Himachal Pradesh.

Versus

General Public

. . Respondent.

705

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Whereas Miss Tashi Lhamo d/o Late Shri Wangdu, r/o Tibetan Coloney Below Old Bus

Stand, Shimla-1, Himachal Pradesh has filed an application alongwith affidavit in the court of

undersigned under section 13 of the Birth and Death Registration Act, 1969 to enter her date of

birth of named Miss Tashi Lhamo d/o Late Shri Wangdu, r/o Tibetan Coloney Below Old Bus

Stand, Shimla-1, Himachal Pradesh in the record of Birth and Death in the office of MC Shimla,

Shimla (R) B&D has issued No. MCS/CHO13-461, Dated 17-4-2014 as following :

Sl.

No.

Name of the family members

Relation

Date of Birth

Miss Tashi Lhamo

d/o Late Shri Wangdu

1-12-1980

Hence this proclamation is issued to the general public if they have any objection/claim

regarding entry of date of birth of above in the record of MC Shimla, may file their

claim/objections on or before one month of publication of this notice in Govt. Gazette in this court,

failing which necessary orders will be passed.

Issued today 12-5-2014 under my signature and seal of the court.

Seal.

GIAN SAGAR NEGI,

Sub-Divisional Magistrate,

Shimla(R), District Shimla, Himachal Pradesh.

__________

In the Court of Shri Gian Sagar Negi, Sub-Divisional Magistrate, Shimla (R),

District Shimla, Himachal Pradesh

Shri Kamlesh Kumar s/o Late Shri Dmodar Dass, r/o Durga Bhawan Chaloulanti, Sanjauli,

Shimla-6, Himachal Pradesh.

Versus

General Public

. . Respondent.

Whereas Shri Kamlesh Kumar s/o Late Shri Dmodar Dass, r/o Durga Bhawan Chaloulanti,

Sanjauli, Shimla-6, Himachal Pradesh has filed an application alongwith affidavit in the court of

undersigned under section 13 of the Birth and Death Registration Act, 1969 to enter his Step

Mother's date of Death, named late Smt. Ganga Devi w/o Late Shri Damodar Dass, r/o Durga

Bhawan Chaloulanti, Sanjauli, Shimla-6, Himachal Pradesh in the record of Birth and Death in the

office of MC Shimla, Shimla (R) B&D has issued No. MCS/CHO14-493, Dated 30-4-2014 as

following :

Sl.

No.

Name of the family members

Relation

Date of Death

Late Smt. Ganga Devi

w/o Late Shri Damodar Dass

14-6-2003

Hence this proclamation is issued to the general public if they have any objection/claim

regarding entry of date of death of above in the record MC Shimla, may file their claim/objections

on or before one month of publication of this notice in Govt. Gazette in this court, failing which

necessary orders will be passed.

706

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Issued today 12-5-2014 under my signature and seal of the court.

Seal.

GIAN SAGAR NEGI,

Sub-Divisional Magistrate,

Shimla(R), District Shimla, Himachal Pradesh.

__________

In the Court of Shri G. C. Negi, H.A.S., Sub-Divisional Magistrate, Shimla (Urban),

District Shimla, Himachal Pradesh

Smt. Surekha Rattan w/o Shri Pardeep Rattan, r/o Shop No. 29, Uppar Flat, Chotta Shimla,

Tehsil and District Shimla, Himachal Pradesh

..Applicant.

Versus

General Public

.. Respondent.

Application under section 13 (3) of Birth and Death Registration Act, 1969.

Smt. Surekha Rattan w/o Shri Pardeep Rattan, r/o Shop No. 29, Uppar Flat, Chotta Shimla,

Tehsil and District Shimla, Himachal Pradesh has preferred an application to the undersigned for

the registration of name of her son namely Prannoy Rattan whose date of birth is 5-8-1992 in the

record of Municipal Corporation Shimla, District Shimla (H. P.).

Therefore, by this proclamation, the general public is hereby informed that any person

having any objection for entry as to date of birth mentioned above, may submit his/her objection in

writing in this court within one month from the publication of this proclamation failing which no

objection will be entertained after expiry of date and the case will be decided accordingly.

Given under my hand and the seal of the Court on this 5^th day of May, 2014.

Seal.

G. C. NEGI,

Sub-Divisional Magistrate,

Shimla (Urban), District Shimla, Himachal Pradesh.

____________

In the Court of Shri G. C. Negi, H.A.S., Sub-Divisional Magistrate, Shimla (Urban),

District Shimla, Himachal Pradesh

Smt. Dawa Dolma w/o Shri Pema Ngodup, r/o House No. 6, Tibetan Coloney, Sanjauli

Shimla, Himachal Pradesh

..Applicant.

Versus

General Public

.. Respondent.

Application under section 13 (3) of Birth and Death Registration Act, 1969.

Whereas Smt.Dawa Dolma w/o Shri Pema Ngodup, r/o House No. 6, Tibetan Coloney,

Sanjauli Shimla, Himachal Pradesh has preferred an application to the undersigned for the

registration of name of her daughter namely Phuntsok Yangzom whose date of birth is 30-1-1987

in the record of Municipal Corporation Shimla, District Shimla (H. P.).

707

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Therefore, by this proclamation, the general public is hereby informed that any person

having any objection for entry as to date of birth mentioned above, may submit his/her objection in

writing in this court within one month from the publication of this proclamation failing which no

objection will be entertained after expiry of date and the case will be decided accordingly.

Given under my hand and the seal of the Court on this 9^th day of May, 2014.

Seal.

G. C. NEGI,

Sub-Divisional Magistrate,

Shimla (Urban), District Shimla, Himachal Pradesh.

____________

c vnkyr dk;Zdkjh n.Mkf/kdkjh ,oa uk;c rglhynkj] pM+xkao] ftyk f'keyk ¼fg0 iz0½

Jh jkftUnj iq= Jh /keZ flag] fuoklh rsyxk

cuke

vke turk

nj[okLr tsj /kkjk 13 ¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1869 gjxkg Jh jkftUnj iq= Jh

/keZ flag] fuoklh rsyxk] rglhy pM+xkao] ftyk f'keyk] fgekpy izns'k us nj[okLr lesr C;ku gfYQ;k

ds xqtkjh gS fd izkFkÊ dh iqf=;ksa dqekjh efudk dh tUe frfFk 4&7&2007 rFkk iqtk dh tUe frfFk

11&5&2009 gSA izkFkÊ vKkurko'k viuh mijksDr iqf=;ksa dh tUe frfFk;ka dk;kZy; xzke iapk;r [kj'kkyh

eas ntZ u djok ldkA

vr% loZlk/kkj.k dks bl b'rgkj }kjk lwfpr fd;k tkrk gS fd bl ckjs ;fn fdlh

O;fDr@fj'rsnkj dks dksbZ mtj o ,rjkt gks rks og viuk ,rjkt fnukad 9&6&2014 dks izkr% 10-00 cts

bl vnkyr esa gkftj vkdj is'k dj ldrk gS vU;Fkk ,drjQk dk;Zokgh vey esa ykbZ tkdj mijksDr

uke o tUe frfFk;ksa dk bUnzkt xzke iapk;r [kj'kkyh ds ifjokj jftLVj fjdkWMZ esa ntZ djokus ds vkns'k

ikfjr dj fn, tk,axsA

vkt fnukad 9&5&2014 dks gekjs gLrk{kj o eksgj lfgr tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

dk;Zdkjh n.Mkf/kdkjh ,oa uk;c rglhynkj]

pM+xkao] ftyk f'keyk ¼fg0 iz0½A

&&&&&&&

In the Court of Shri Gian Sagar Negi, Sub-Divisional Magistrate, Shimla (R),

District Shimla, Himachal Pradesh

Shri Tota Ram s/o Shri Puran Chand, r/o Village Ganpari, P. O. Shogi, Tehsil and District

Shimla, Himachal Pradesh.

Versus

General Public

. . Respondent.

708

jkti=] fgekpy izns'k] 21 ebZ] 2014@31 oS'kk[k] 1936

Whereas Shri Tota Ram s/o Shri Puran Chand, r/o Village Ganpari, P. O. Shogi, Tehsil and

District Shimla, Himachal Pradesh has filed an application alongwith affidavit in the court of

undersigned under section 13 of the Birth and Death Registration Act, 1969 to enter his date of

birth of named Shri Tota Ram s/o Shri Puran Chand, r/o Village Ganpari, P. O. Shogi, Tehsil and

District Shimla, Himachal Pradesh in the record of Birth and Death in the GP Shogi (R) B&D has

issued No. , Dated 16-5-2014 as following :

Sl.

No.

Name of the family members

Relation

Date of Birth

Shri Tota Ram

s/o Shri Puran Chand

31-12-1993

Hence this proclamation is issued to the general public if they have any objection/claim

regarding entry of date of birth of above in the record of GP Shogi Jalail, may file their

claim/objections on or before one month of publication of this notice in Govt. Gazette in this court,

failing which necessary orders will be passed.

Issued today 20-5-2014 under my signature and seal of the court.

Seal.

GIAN SAGAR NEGI,

Sub-Divisional Magistrate,

Shimla(R), District Shimla, Himachal Pradesh.

__________

CHANGE OF NAME

I, Subhash Chand Sharma s/o Late Shri Lalman Sharma, r/o H. No. 166, Sector 57, Mohali,

Tehsil and District SAS Nagar, (Mohali) Punjab. have changed my name from Subash Sharma to

Subhash Chand Sharma.

SUBHASH CHAND SHARMA

s/o Late Shri Lalman Sharma,

r/o H. No. 166, Sector 57, Mohali,

Tehsil and District SAS Nagar, (Mohali) Pb.

fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr

bysDVªkWfud gLrk{kfjr jkti=] oSclkbV http://rajpatrahimachal.nic.in ij miyC/k gS ,oe~ vkWuykbu lR;kfir fd;k tk ldrk gS